Indemnity and Contribution. (a) The Company shall indemnify and hold the Underwriters, each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) and each of the directors, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damages, liabilities or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Company by the Indemnified Party and its Personnel or otherwise in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnel. (b) If for any reason the foregoing indemnification is unavailable to an Indemnified Party or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmless, then the Company shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault of the Company and the Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement. (c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur. (d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel. (e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement. (f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf of such person.
Appears in 2 contracts
Sources: Underwriting Agreement (Red White & Bloom Brands Inc.), Underwriting Agreement
Indemnity and Contribution. (a) The Company shall Corporation agrees to indemnify and hold the Underwritersharmless each Underwriter, and each of their subsidiaries respective officers, employees and affiliates (collectivelyagents, the “Indemnified Parties” and individually, an “Indemnified Party”) and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties (Exchange Act, and each affiliate of any Underwriter within the “Personnel”) harmless meaning of Rule 405 under the Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions damages and liabilities (including shareholder actionsincluding, derivative actions without limitation, any legal or otherwiseother expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by or based upon, directly or indirectly:
(i) any untrue statement or alleged untrue statement of a material fact contained or incorporated by reference in the Registration Statement or any amendment thereof, any Preliminary Prospectus, the Time of Sale Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any information regarding the Corporation that the Corporation has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, or the Prospectuses or any amendment or supplement thereto, or any Marketing Materials or caused by any omission or alleged omission to state 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 they were made, in each case other than the Registration Statement), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, except insofar as such expenses, losses, claims, damages, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company Corporation in writing by such Underwriter expressly for use therein;
(ii) the Indemnified Party non-compliance or alleged non-compliance of the Corporation with any requirement of Canadian Securities Laws or the Securities Act and its Personnel the applicable rules and regulations of the Commission thereunder or otherwise stock exchange requirements in connection with this offering of the matters referred to Offered Units;
(iii) any breach by the Corporation of any representation or warranty contained in this Agreement Agreement; or
(including the aggregate amount paid in reasonable settlement of iv) any such actions, suits, investigations, proceedings order made or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suitinquiry, investigation or proceeding has been caused solely commenced or threatened by any securities regulatory authority, stock exchange or is by any competent authority which prevents or restricts the result trading in or sale of the gross negligence, wilful misconduct Corporation’s securities or fraud the distribution of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of Offered Units in any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personneljurisdiction.
(b) If In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 10(a), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (iii) the indemnifying party does not assume the defence of the proceeding on behalf of the indemnified party within a reasonable period of time after receiving notice thereof or, having assumed such defence, fails to pursue it diligently. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters, and all of their respective officers, employees and agents, and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act and (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Corporation, the officers of the Corporation who sign the Registration Statement and each person, if any, who controls the Corporation within the meaning of either such Section. In the case of any such separate firm for the Underwriters and such officers, employees and agents, and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by BMO. In the case of any such separate firm for the Corporation, officers of the Corporation and control persons of the Corporation, such firm shall be designated in writing by the Corporation. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested the indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by the indemnifying party of the aforesaid request and (ii) the indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. The indemnifying party shall not, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(c) To the extent the indemnification provided for in Section 10(a) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company Corporation, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Corporation on the one hand and the indemnified party or parties on the other hand from the offering of the Offered Units or (ii) if the allocation provided by clause 10(c)(i) above is not permitted by Applicable Law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 10(c)(i) above but also the relative fault of the Company Corporation on the one hand and of the Indemnified Party and/or its Personnelindemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that . The relative benefits received by the Company shallCorporation on the one hand and the Underwriters on the other hand in connection with the offering of the Offered Units shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Offered Units (before deducting expenses) received by the Corporation and the total underwriting discounts and commissions received by the Underwriters, in any eventeach case as set forth in the table on the cover of each of the Prospectuses, contribute bear to the aggregate Public Offering Price of the Offered Units. The relative fault of the Corporation on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Corporation or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 10 are several in proportion to the respective number of Offered Units they have purchased hereunder, and not joint (nor joint and several).
(d) The Corporation and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 10 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 10(c). The amount paid or payable by the Indemnified Party and/or its Personnel an indemnified party as a result of such expensethe losses, lossclaims, claimdamages and liabilities referred to in Section 10(c) shall be deemed to include, damage or liabilitysubject to the limitations set forth above, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify expenses reasonably incurred by such indemnified party in connection therewith with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 10, (i) no Underwriter shall be required to respond contribute any amount in excess of the amount by which the total price at which the Offered Units underwritten by it and distributed to procedures designed the public were offered to discover information regarding, in connection with, or the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and (ii) no person guilty of fraudulent misrepresentation (within the performance meaning of professional services rendered Section 11(f) of the Securities Act) shall be entitled to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses contribution from any person who was not guilty of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnelfraudulent misrepresentation. The Company remedies provided for in this Section 10 are not exclusive and shall on behalf of itself and the Indemnifying Parties and/or its Personnel not limit any rights or remedies which may otherwise be entitled (but not required) available to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented indemnified party at law or in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counselequity or otherwise.
(e) The indemnity and contribution obligations provisions contained in this Section 10 and the representations, warranties and other statements of the Company shall be Corporation contained in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement shall remain operative and shall be binding upon in full force and enure to the benefit effect regardless of (i) any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter, and any of their respective officers, employees or agents, any person controlling any Underwriter, or any affiliate of any Underwriter, or by or on behalf of the Corporation, its officers or directors or any person controlling the Corporation and (iii) acceptance of and payment for any of the Offered Units.
(f) With The indemnifying party hereby acknowledges and agrees that, with respect to any party who may be indemnified by the above indemnity is not a party to this AgreementSection 10, the Underwriters shall obtain are contracting on their own behalf and as agents for their affiliates, directors, officers, employees and agents and their respective affiliates, directors, officers, employees and agents (collectively, the “Beneficiaries”). In this regard, each of the Underwriters will act as trustee for the Beneficiaries of the covenants of the indemnifying party under this Section 10 with respect to the Beneficiaries and accepts these trusts and will hold the rights and benefits of this indemnity in trust for and enforce those covenants on behalf of such personthe Beneficiaries.
Appears in 2 contracts
Sources: Underwriting Agreement (Aurora Cannabis Inc), Underwriting Agreement (Aurora Cannabis Inc)
Indemnity and Contribution. (a) The Company shall and the Selling Stockholder, jointly and severally, agree to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectivelyeither Section 15 of the Securities Act or Section 20 of the Exchange Act, the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Underwriter within the directorsmeaning of Rule 405 under the Securities Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), feeslosses, claims, actions damages and liabilities (including shareholder actionsincluding, derivative actions without limitation, any legal or otherwiseother expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), damagesor caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, obligations except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Shares, or any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company has furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, whether joint unless such failure is the result of material noncompliance by the Company with Section 7(a) hereof.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Stockholder, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or severalthe Selling Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a) or 9(b) hereof, such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing (but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection, except to the extent that indemnifying party suffers actual prejudice as a result of such failure) and the reasonable indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of their counsel, that may such counsel shall be incurred in advising with respect at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to and/or defending the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act and (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, the Selling Stockholder, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or the Selling Stockholder within the meaning of either such Section. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and Citigroup Global Markets Inc. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company or the Selling Stockholder, such firm shall be designated in writing by the Company and the Selling Stockholder. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened claims, actions, suits, investigations or proceedings to proceeding in respect of which any Indemnified Party and/or its Personnel may become 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.
(d) To the extent the indemnification provided for in Section 9(a) or otherwise involved 9(b) hereof is unavailable to an indemnified party or insufficient in respect of any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages or liabilities referred to therein, liabilities or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered except to the Company by extent (but only to the Indemnified Party and its Personnel or otherwise in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities extent) that the Indemnified Parties and/or their Personnel may incur indemnifying party suffers actual prejudice as a result of any action failure by the indemnified party to notify the indemnifying party of any action, proceeding or litigation that may be threatened or brought against an Indemnified Party and/or its Personnel.
investigation as contemplated by subsection (bc) If for any reason the foregoing indemnification is unavailable to an Indemnified Party or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmlessof this Section 9, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by Section 9(d)(i) hereof is not permitted by applicable law, damage or liability if the indemnified party failed to give the notice required under subsection (c) above, then, except to the extent (but only to the extent) that the indemnifying party suffers actual prejudice as a result of any failure by the indemnified party to notify the indemnifying party of any action, proceeding or investigation as contemplated by subsection (c) of this Section 9, in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in Section 9(d)(i) hereof but also the relative fault of the Company indemnifying party or parties on the one hand and of the Indemnified Party and/or its Personnelindemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees . The relative benefits received by the Indemnified Party Company or the Selling Stockholder on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Selling Stockholder and the total -24- underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company or the Selling Stockholder on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Selling Stockholder or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 9 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Shares they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The Company, the Selling Stockholder and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(d) hereof. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 9 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 obligations of provisions contained in this Section 9 and the Company shall be in addition to any liability which the Company may otherwise haverepresentations, shall extend upon the same terms warranties and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives other statements of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under Selling Stockholder contained in this Agreement and/or the shall remain operative and in full force and effect regardless of (i) any termination of this Agreement.
, (fii) With respect to any party who may be indemnified investigation made by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, the Selling Stockholder or any person controlling the Selling Stockholder, or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares; provided, however, that if this Agreement shall be terminated pursuant to Section 10(i), (iii), (iv), or (v) or the second paragraph of Section 11 hereof, the Company and the Selling Stockholder shall have no liability to you.
Appears in 2 contracts
Sources: Underwriting Agreement (Todco), Underwriting Agreement (Todco)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectivelyeither Section 15 of the Securities Act or Section 20 of the Exchange Act, the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Underwriter within the directorsmeaning of Rule 405 under the Securities Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), feeslosses, claims, actions damages and liabilities (including shareholder actionsincluding, derivative actions without limitation, any legal or otherwise)other expenses reasonably incurred by such indemnified party in connection with defending or investigating any such action or claim) arising out of or caused by any untrue statement or alleged untrue statement of a material fact contained in (x) the Registration Statement or any amendment thereof or arising out of or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwiseexcept, insofar as such expenses, losses, claims, damages, damages or liabilities or actions arise out of or are based, directly caused by any such untrue statement or indirectly, omission or alleged untrue statement or omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Indemnified Party and its Personnel Representatives expressly for use therein or otherwise (y) any Company Additional Written Communication, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or arising out of or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in connection with the matters referred light of the circumstances under which they were made, not misleading, except, insofar as such losses, claims, damages or liabilities arise out of or are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein. The indemnity agreement set forth in this Agreement (including the aggregate amount paid Section 8(a) shall be in reasonable settlement of addition to any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel Company may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnelotherwise have.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the directors and officers of the Company who signed the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred by such indemnified party in connection with defending or investigating any such action or claim) arising out of or caused by any untrue statement or alleged untrue statement of a material fact contained in (x) the Registration Statement or any amendment thereof or arising out of or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the therein or (y) any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or arising out of or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein; it being understood and agreed that the only such information furnished to the Company by any Underwriter through the Representatives expressly for use in the Registration Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus, the Prospectus or any amendments or supplements thereto consists of the statements set forth in the fifth, tenth and eleventh paragraphs of text under the caption “Underwriting” in the Preliminary Prospectus and the Prospectus and the third sentence of the ninth paragraph of text under the caption “Underwriting” in the Preliminary Prospectus and the Prospectus. The indemnity agreement set forth in this Section 8(b) shall be in addition to any liabilities that each Underwriter may otherwise have.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable and documented fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the reasonable and documented fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act and (ii) the reasonable and documented fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred (subject to receipt of a documented request for reimbursement). In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by the Representatives. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the foregoing prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of such indemnified party.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Notes or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Notes shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Notes (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Notes. The relative fault of the Company on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters’ respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 8 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective aggregate principal amount of Notes they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelUnderwriters agree that it would not be just or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(d). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 8, no Underwriter shall be required to contribute any amount in excess of the amount by which the underwriting commissions received by such Underwriter in connection with the Notes underwritten by it and distributed to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 8 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) With respect to The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Notes.
Appears in 2 contracts
Sources: Underwriting Agreement (Cme Group Inc.), Underwriting Agreement (Cme Group Inc.)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Holder named in any Shelf Registration Statement (including, each of their subsidiaries and affiliates (collectivelywithout limitation, the “Indemnified Parties” and individuallyInitial Purchasers), an “Indemnified Party”) and each person, if any, who controls any such Holder within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Exchange Act (the collectively referred to for purposes of this Section 5 as a “PersonnelHolder”) harmless ), from and against any and all expenses, losses (other than loss of profits), feeslosses, claims, actions damages and liabilities (including shareholder actionswithout limitation the reasonable legal fees and other expenses incurred in connection with any suit, derivative actions action or otherwiseproceeding or any claim asserted) caused by any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement, or in any Prospectus, or any amendment thereof or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary, in the case of any Prospectus in light of the circumstances under which they were made, to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with information relating to any Holder furnished to the Company in writing by such Holder expressly for use therein or such information provided by the Majority Holders pursuant to Section 3(n); provided that the foregoing indemnity with respect to any Shelf Registration Statement, or any Prospectus, shall not inure to the benefit of any Holder (or the benefit of any person controlling such Holder) from whom the person asserting any such losses, claims, damages or liabilities purchased the securities concerned, to the extent that any such loss, claim, damage or liability of the Holders occurs under the circumstance where it shall have been established that (w) the Company had previously furnished copies of the Prospectus, and any amendments and supplements thereto, to the Holder (to the extent such Holder has previously requested such copies), damages, obligations or liabilities, whether joint or several(x) delivery of the Prospectus, and any amendment or supplements thereto, was required by the Securities Act to be made to such person, (y) the untrue statement or omission of a material fact was corrected in the Prospectus or amendments or supplements thereto and (z) there was not sent or given to such person, at or prior to the written confirmation of the sale of such securities to such person, a copy of such Prospectus or amendments or supplements thereto.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, officers, employees and agents and each person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and the directors, officers, employees and agents of such controlling persons, to the same extent as the foregoing indemnity from the Company to the Holders, but only with regard to such information furnished to the Company in writing by such Holder expressly for use therein.
(c) If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnity may be sought pursuant to either of the two preceding paragraphs, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Person”) in writing, and the Indemnifying Person, upon request of the Indemnified Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others the Indemnifying Person may designate in such proceeding and shall pay the reasonable fees and expenses of their such counsel related to such proceeding. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, that may but the fees and expenses of such counsel shall be incurred at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary, (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person or (iii) the named parties in advising with respect any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to and/or defending any actual or potential differing interests between them. It is understood that the Indemnifying Person shall 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 firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such separate firm for the Holders and such control persons of the Holders shall be designated in writing by the Initial Purchasers and any such separate firm for the Company, its directors and such control persons of the Company shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any pending or threatened claimsproceeding effected without its prior written consent, actionsbut if settled with such consent or if there be a final judgment for the plaintiff, suitsthe Indemnifying Person agrees to indemnify in accordance with Section 5(a) or 5(b) above, investigations as the case may be, any Indemnified Person from and against any loss or proceedings to liability by reason of such settlement or judgment. No Indemnifying Person shall, without the prior written consent of the Indemnified Person, effect any settlement of any pending proceeding in respect of which any Indemnified Party and/or its Personnel may become subject Person is a party or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damages, liabilities or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Company by the Indemnified Party and its Personnel or otherwise in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any threatened proceeding in respect of which any Indemnified Person could have been a party and indemnity could have been sought hereunder by such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)Person, unless such actual or threatened claim, action, suit, investigation or settlement includes an unconditional release of such Indemnified Person from all liability on claims that are the subject matter of such proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the on terms reasonably satisfactory to such Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelPerson.
(d) If the indemnification provided for in paragraph (a) or (b) If for any reason the foregoing indemnification of this Section 5 is unavailable to an Indemnified Party or its Personnel Person or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by an such Indemnified Party and/or its Personnel Person as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand with respect to the sale by such Holder of Convertible Preferred Stock or Common Stock or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause (i) above but also the relative fault of the Company on the one hand and of such Holder on the Indemnified Party and/or its Personnelother in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees . Benefits received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against deemed to be equal to the total net proceeds from the Initial Placement (before deducting expenses). Benefits received by the Initial Purchasers shall be deemed to be equal to the total purchase discounts and commissions received by the Initial Purchasers in the Initial Placement, and benefits received by any other Holders shall be deemed to be equal to the value of receiving shares of Convertible Preferred Stock or Common Stock, as applicable, registered under the Securities Act. Benefits received by any underwriter shall be deemed to be equal to the total underwriting discounts and commissions, as set forth on the cover page of the Prospectus forming a part of the Shelf Registration Statement which resulted in such losses, claims, damages or liabilities. The relative fault of the Company and/or an Indemnified Party and/or its Personnel on the one hand and such Holder on the other shall be determined by reference to, among other things, whether any governmental commission or regulatory authority untrue or any stock exchange alleged untrue statement of a material fact or other entity having regulatory authority, either domestic the omission or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required alleged omission to testify in connection therewith or shall be required state a material fact relates to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid supplied by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself such Holder and the Indemnifying Parties and/or its Personnel be entitled (but not required) parties’ relevant intent, knowledge, information and opportunity to assume the defence of any suit brought to enforce correct or prevent such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counselstatement or omission.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties Holders agree that it would not be just and its Personnelequitable if contribution pursuant to this Section 5 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) of this Section 5. The foregoing provisions shall survive the completion amount paid or payable by an Indemnified Person as a result of professional services rendered under this Agreement and/or the termination losses, claims, damages and liabilities referred to in paragraph (d) of this AgreementSection 5 shall be deemed to include, subject to the limitations set forth above, any reasonable legal or other expenses incurred by such Indemnified Person not otherwise reimbursed in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5, in no event shall any Holder be required to contribute any amount in excess of the amount by which the total amount received by such Holder with respect to its sale of Transfer Restricted Securities pursuant to a Shelf Registration Statement exceeds the amount of any damages that such 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.
(f) With respect The remedies provided for in this Section 5 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any party who may be indemnified by the above Indemnified Party at law or in equity.
(g) The indemnity is not a party to and contribution agreements contained in this Section 5 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Holder or any person controlling any Holder or by or on behalf of the Company, its officers or directors or any other person controlling the Company, and the indemnity and contribution agreements contained in this Section 5 shall survive the sale by a Holder of Transfer Restricted Securities covered by a Shelf Registration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Wmih Corp.), Registration Rights Agreement (Wmi Holdings Corp.)
Indemnity and Contribution. (a) The Company shall Partnership Parties, jointly and severally, agree to indemnify and hold harmless each Underwriter, each director, officer and employee of each Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities, including actions and other proceedings in respect thereof and including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such claim, action or other proceeding (any of the foregoing being a “Loss”), caused by, arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Time of Sale Prospectus, any issuer free writing prospectus, any issuer information that the Partnership has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any road show, any Written Testing-the-Waters Communication or the Prospectus or any amendment or supplement thereto, or any omission or alleged omission to state therein 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; provided, however, that the Partnership Parties shall not be liable under this Section 8(a) to the extent that such Losses are caused by, arise out of or are based upon any such untrue statement or omission or alleged untrue statement or omission made therein in reliance upon and in conformity with the Underwriter Information furnished to the Partnership Parties in writing by such Underwriter through the Representative expressly for use therein, it being agreed and understood that the only such Underwriter Information consists of the information being described as such in Section 1(c) hereof.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Partnership Parties, the directors of the General Partner, the officers of the General Partner who sign the Registration Statement and each person, if any, who controls the Partnership Parties within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all Losses caused by, arising from or based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Time of Sale Prospectus, any issuer free writing prospectus, any issuer information that the Partnership has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any road show, any Written Testing-the-Waters Communication or the Prospectus or any amendment, supplement thereto, or any omission or alleged omission to state therein 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, in each case to the extent, but only to the extent, that such Losses are caused by, arise out of or are based upon any untrue statement or omission or alleged untrue statement or omission made therein in reliance upon and in conformity with the Underwriter Information furnished to the Partnership Parties in writing by such Underwriter through the Representative expressly for use therein, it being agreed and understood that the only such Underwriter Information consists of the information being described as such in Section 1(c) hereof.
(c) In case any claim, action or other proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but failure to so notify an 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 that it may have otherwise than on account of this indemnity agreement. The indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate law firm (in addition to any local counsel) for all Underwriters, all directors, officers and employees of the Underwriters, each and all persons, if any, who control any Underwriter within the meaning of their subsidiaries either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, and affiliates (collectivelyii) the fees and expenses of more than one separate law firm (in addition to any local counsel) for the Partnership Parties, the “Indemnified Parties” and individuallydirectors of the General Partner, an “Indemnified Party”) the officers of the General Partner who sign the Registration Statement and each person, if any, who controls the Partnership Parties within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate law firm for the Underwriters and such directors, officers, employees, shareholderscontrol persons and affiliates of any Underwriters, unitholderssuch law firm shall be designated in writing by ▇▇▇▇▇▇▇ ▇▇▇▇▇. In the case of any such separate law firm for the Partnership Parties, advisors and agents such directors, officers and control persons of the Indemnified Parties (Partnership Parties, such firm shall be designated in writing by the “Personnel”) harmless General Partner. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, then the indemnifying party agrees to indemnify the indemnified party from and against any and all expensesLoss by reason of such settlement or judgment. Notwithstanding the foregoing sentence, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and if at any time an indemnified party shall have requested an indemnifying party to reimburse the reasonable indemnified party for fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar counsel as such expenses, losses, claims, damages, liabilities or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Company contemplated by the Indemnified Party third and its Personnel or otherwise in connection with fourth sentences of this paragraph, the matters referred to in this Agreement (including the aggregate amount paid in reasonable indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such actionssettlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, suitswithout the prior written consent of the indemnified party, investigations, proceedings effect any settlement of any pending or claims that may be made against an Indemnified Party and/or its Personnel)threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is settlement includes an unconditional release of such indemnified party from all liability on Losses that are the result subject matter of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnelsuch proceeding.
(bd) If To the extent the indemnification provided for any reason the foregoing indemnification in Section 8(a) or 8(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any Losses referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenseLosses (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the Offering or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause (i) above but also the relative fault of the Company indemnifying party or parties on the one hand and of the Indemnified Party and/or its Personnelindemnified party or parties on the other hand in connection with the statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees . The relative benefits received by the Indemnified Party Partnership Parties on the one hand and the Underwriters on the other hand in connection with the Offering shall be deemed to be in the same respective proportions as the net proceeds from the Offering (before deducting expenses) received by the Partnership and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Units. The relative fault of the Partnership Parties on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Partnership Parties or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 8 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Units they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity Partnership Parties and the Underwriters agree that it would not be just or equitable if contribution obligations pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the Company equitable considerations referred to in Section 8(d). Notwithstanding the provisions of this Section 8, no Underwriter shall be required to contribute any amount in addition excess of the amount by which the total price at which the Units underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreementindemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 8 shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any director, officer or employee of any Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, or the Partnership, the officers or directors of its General Partner or any person controlling the Partnership Parties and (iii) acceptance of and payment for any of the Units.
Appears in 2 contracts
Sources: Underwriting Agreement (Landmark Infrastructure Partners LP), Underwriting Agreement (Landmark Infrastructure Partners LP)
Indemnity and Contribution. (a) The Company shall and the Guarantors, jointly and severally, agree to indemnify and hold the Underwritersharmless each Holder of Transfer Restricted Securities named in any Shelf Registration Statement (including, without limitation, each of their subsidiaries and affiliates (collectivelyInitial Purchaser), the “Indemnified Parties” and individuallyits directors, an “Indemnified Party”) its officers and each person, if any, who controls any such Holder within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Exchange Act (the collectively referred to for purposes of this Section 5 as a “PersonnelHolder”) harmless ), from and against any and all expenses, losses (other than loss of profits), feeslosses, claims, actions damages and liabilities (including shareholder actionswithout limitation the legal fees and other expenses incurred in connection with any suit, derivative actions action or otherwiseproceeding or any claim asserted) caused by any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement, or in any Prospectus, or any amendment thereof or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with information relating to any Holder furnished to the Company in writing by such Holder expressly for use therein; provided that the foregoing indemnity with respect to any Shelf Registration Statement, or any Prospectus, or any amendment or supplement thereto, shall not inure to the benefit of any Holder (or the benefit of any person controlling such Holder) from whom the person asserting any such losses, claims, damages or liabilities purchased the securities concerned, to the extent that any such loss, claim, damage or liability of the Holders occurs under the circumstance where it shall have been established that (w) the Company had previously furnished copies of the Prospectus, and any amendments and supplements thereto, to the Holder, (x) delivery of the Prospectus, and any amendment or supplements thereto, was required by the Securities Act to be made to such person, (y) the untrue statement or omission of a material fact was corrected in the Prospectus or amendments or supplements thereto, and (z) there was not sent or given to such person, at or prior to the written confirmation of the sale of such securities to such person, a copy of such Prospectus or amendments or supplements thereto.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company and the Guarantors, its directors, its officers and each person who controls the Company and the Guarantors within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act, to the same extent as the foregoing indemnity from the Company and the Guarantors to the Holders, but only with reference to information relating to such Holder furnished to the Company and the Guarantors in writing by such Holder expressly for use in the Shelf Registration Statement, or in any Prospectus, or any amendment or supplement thereto.
(c) If any suit, action, proceeding (including any governmental or regulatory investigation), damagesclaim or demand shall be brought or asserted against any person in respect of which indemnity may be sought pursuant to either of the two preceding paragraphs, obligations or liabilities, whether joint or severalsuch person (the “Indemnified Person”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Person”) in writing, and the Indemnifying Person, upon request of the Indemnified Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others the Indemnifying Person may designate in such proceeding and shall pay the reasonable fees and expenses of their such counsel related to such proceeding. The Indemnifying Person shall be relieved from liability to the extent that the Indemnified Person fails to promptly notify the Indemnifying Person of any action commenced against it in respect of which indemnity may be sought hereunder; provided that failure to so notify the Indemnifying Person (i) shall not relieve the Indemnifying Person from any liability hereunder to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Indemnifying Person from any liability which it may have otherwise than on account of this indemnity agreement. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, that may but the fees and expenses of such counsel shall be incurred at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary, (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person or (iii) the named parties in advising with respect any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate, in the reasonable judgment of the Indemnified Person, due to and/or defending any actual or potential differing interests between them. It is understood that the Indemnifying Person shall 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 firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such separate firm for the Holders and such control persons of the Holders shall be designated in writing by the Representative and any such separate firm for the Company and the Guarantors, their respective directors, officers and such control persons of the Company and the Guarantors shall be designated in writing by the Company and the Guarantors. The Indemnifying Person shall not be liable for any settlement of any pending or threatened claimsproceeding effected without its written consent, actionsbut if settled with such consent or if there be a final judgment for the plaintiff, suitsthe Indemnifying Person agrees to indemnify any Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, investigations if at any time an Indemnified Person shall have requested an Indemnifying Person to reimburse the Indemnified Person for fees and expenses of counsel as contemplated by the fourth sentence of this paragraph, the Indemnifying Person 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 30 days after receipt by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the prior written consent of the Indemnified Person, effect any settlement of any pending or proceedings to threatened proceeding in respect of which any Indemnified Party and/or its Personnel may become subject Person is or otherwise involved in any capacity under any statute or common law or otherwise, insofar as could have been a party and indemnity could have been sought hereunder by such expenses, losses, claims, damages, liabilities or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Company by the Indemnified Party and its Personnel or otherwise in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)Person, unless such actual or threatened claim, action, suit, investigation or settlement includes an unconditional release of such Indemnified Person from all liability on claims that are the subject matter of such proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the on terms reasonably satisfactory to such Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelPerson.
(d) If the indemnification provided for in paragraph (a) or (b) If for any reason the foregoing indemnification of this Section 5 is unavailable to an Indemnified Party or its Personnel Person or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by an such Indemnified Party and/or its Personnel Person as a result of such expenselosses, lossclaims, claimdamages or liabilities (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 Holder on the other hand with respect to the sale by such Holder of Securities or Common Stock or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause (i) above but also the relative fault of the Company and the Indemnified Party and/or its PersonnelGuarantors on the one hand and of such Holder on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees . Benefits received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding and the Guarantors shall be brought against deemed to be equal to the total net proceeds from the Initial Placement (before deducting expenses). Benefits received by the Initial Purchasers shall be deemed to be equal to the total purchase discounts and commissions as set forth in the Offering Memorandum, and benefits received by any other Holders shall be deemed to be equal to the value of receiving Securities registered under the Securities Act. Benefits received by any underwriter shall be deemed to be equal to the total underwriting discounts and commissions, as set forth on the cover page of the Prospectus forming a part of the Shelf Registration Statement which resulted in such losses, claims, damages or liabilities. The relative fault of the Company and/or an Indemnified Party and/or its Personnel and the Guarantors on the one hand and such Holder on the other shall be determined by reference to, among other things, whether any governmental commission or regulatory authority untrue or any stock exchange alleged untrue statement of a material fact or other entity having regulatory authority, either domestic the omission or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required alleged omission to testify in connection therewith or shall be required state a material fact relates to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid supplied by the Company as they occur.
(d) Promptly after receipt of notice or either of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel Guarantors or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself such Holder and the Indemnifying Parties and/or its Personnel be entitled (but not required) parties’ relevant intent, knowledge, information and opportunity to assume the defence of any suit brought to enforce correct or prevent such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counselstatement or omission.
(e) The Company, the Guarantors and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 5 were determined by pro rata allocation (even if the Company and the Guarantors, on the one hand, or the Holders, on the other hand, were treated as one entity for such purpose) or any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) of this Section 5. The amount paid or payable by an Indemnified Person as a result of losses, claims, damages and liabilities referred to in paragraph (d) of this Section 5 shall be deemed to include, subject to the limitations set forth above, any reasonable legal or other expenses incurred by such Indemnified Person not otherwise reimbursed in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5, in no event shall any Holder be required to contribute any amount in excess of the amount by which the total amount received by such Holder with respect to its sale of Transfer Restricted Securities pursuant to a Shelf Registration Statement exceeds the amount of any damages that such 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.
(f) The remedies provided for in this Section 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.
(g) The indemnity and contribution obligations agreements contained in this Section 5 shall remain operative and in full force and effect regardless of the Company shall be in addition to (i) any liability which the Company may otherwise havetermination of this Agreement, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit (ii) any investigation made by or on behalf of any successors, assigns, heirs and personal representatives Holder or any person controlling any Holder or by or on behalf of the Company and the Indemnified Parties Guarantors, their respective officers or directors or any other person controlling the Company or either of the Guarantors and its Personnel. The foregoing provisions shall survive (iii) the completion sale by a Holder of professional services rendered under this Agreement and/or the termination of this AgreementTransfer Restricted Securities covered by a Shelf Registration Statement.
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf of such person.
Appears in 2 contracts
Sources: Registration Rights Agreement (Capitalsource Inc), Registration Rights Agreement (Capitalsource Holdings LLC)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (collectivelythe "EXCHANGE ACT"), the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Underwriter within the directors, officers, employees, shareholders, unitholders, advisors and agents meaning of Rule 405 under the Indemnified Parties (the “Personnel”) harmless Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel foregoing indemnity agreement with respect to any untrue statement contained in or otherwise in connection with omission from a preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 6(a) hereof.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed in writing to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, in the case of parties indemnified pursuant to Section 7(a), and by the Company, in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 7(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 7(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 7 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Shares they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelUnderwriters agree that it would not be just or equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 7(d). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 7 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 2 contracts
Sources: Underwriting Agreement (Pharmion Corp), Underwriting Agreement (Pharmion Corp)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectivelyeither Section 15 of the Securities Act or Section 20 of the Exchange Act, the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Underwriter within the directorsmeaning of Rule 405 under the Securities Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), feeslosses, claims, actions damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred by such indemnified party in connection with defending or investigating any such action or claim) arising out of or caused by any untrue statement or alleged untrue statement of a material fact contained in (x) the Registration Statement or any amendment thereof or arising out of or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except, insofar as such losses, claims, damages or liabilities arise out of or are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein or (y) any Company Additional Written Communication, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or arising out of or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except, insofar as such losses, claims, damages or liabilities arise out of or are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein. The indemnity agreement set forth in this Section 8(a) shall be in addition to any liabilities that the Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the directors and officers of the Company who signed the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred by such indemnified party in connection with defending or investigating any such action or claim) arising out of or caused by any untrue statement or alleged untrue statement of a material fact contained in (x) the Registration Statement or any amendment thereof or arising out of or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the therein or (y) any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or arising out of or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein; it being understood and agreed that the only such information furnished to the Company by any Underwriter through the Representatives expressly for use in the Registration Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus, the Prospectus or any amendments or supplements thereto consists of the statements set forth in the fifth, ninth and tenth paragraphs of text under the caption “Underwriting” in the Preliminary Prospectus and the Prospectus and the third sentence of the eighth paragraph of text under the caption “Underwriting” in the Preliminary Prospectus and the Prospectus. The indemnity agreement set forth in this Section 8(b) shall be in addition to any liabilities that each Underwriter may otherwise have.
(c) In case any proceeding (including shareholder actions, derivative actions any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or otherwise8(b), damages, obligations or liabilities, whether joint or severalsuch person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the reasonable fees and expenses of their more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act and (ii) the reasonable fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section, and that may all such fees and expenses shall be incurred reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in advising writing by the Representatives. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with respect such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to and/or defending indemnify the indemnified party from and against any actual loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened claims, actions, suits, investigations or proceedings to proceeding in respect of which any Indemnified Party and/or its Personnel may become indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (ii) does not include a statement as to, or otherwise involved an admission of, fault, culpability or a failure to act by or on behalf of such indemnified party.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an indemnified party or insufficient in respect of any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damages, damages or liabilities or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Company by the Indemnified Party and its Personnel or otherwise in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnel.
(b) If for any reason the foregoing indemnification is unavailable to an Indemnified Party or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Notes or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Notes shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Notes (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Notes. The relative fault of the Company on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters’ respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 8 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective aggregate principal amount of Notes they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelUnderwriters agree that it would not be just or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(d). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 8, no Underwriter shall be required to contribute any amount in excess of the amount by which the underwriting commissions received by such Underwriter in connection with the Notes underwritten by it and distributed to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 8 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) With respect to The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Notes.
Appears in 2 contracts
Sources: Underwriting Agreement (Cme Group Inc.), Underwriting Agreement (Cme Group Inc.)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectivelyeither Section 15 of the Securities Act or Section 20 of the Exchange Act, the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Underwriter within the directors, officers, employees, shareholders, unitholders, advisors and agents meaning of Rule 405 under the Indemnified Parties (the “Personnel”) harmless Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (if used within the period set forth in paragraph (c) of Section 7 hereof and as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter or any affiliate of such Underwriter within the meaning of Rule 405 of the Securities Act, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendment or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage or liability, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud Company in furnishing copies of the Indemnified Party Prospectus (or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply amendments or supplements thereto) pursuant to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelSection 7(a) hereof.
(b) If The Selling Stockholder agrees to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (if used within the period set forth in paragraph (c) of Section 7 hereof and as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to the Selling Stockholder Information; provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Shares, or any person controlling such Underwriter or any affiliate of such Underwriter within the meaning of Rule 405 of the Securities Act, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendment or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage or liability, unless such failure is the result of noncompliance by the Company in furnishing copies of the Prospectus (or amendments or supplements thereto) pursuant to Section 7(a) hereof. The liability of the Selling Stockholder under the indemnity agreement contained in this paragraph shall be limited to an amount equal to the aggregate Public Offering Price of the Shares sold by the Selling Stockholder under this Agreement.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Stockholder, the directors and officers of the Company and Selling Stockholder who sign the Registration Statement and each person, if any, who controls the Company or the Selling Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Selling Stockholder and all persons, if any, who controls the Selling Stockholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by the Representatives. In the case of any such separate firm for the Company and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Stockholder and such control persons of the Selling Stockholder, such firm shall be designated in writing by the Selling Stockholder. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the foregoing prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a), 9(b) or 9(c) is unavailable to an Indemnified Party indemnified party in respect of any losses, claims, damages or its Personnel or insufficient liabilities referred to hold an Indemnified Party or its Personnel harmlessunder such paragraph, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) if the indemnifying party is the Company or the Selling Stockholder, damage in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or liability parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares, (ii) if the indemnifying person is an Underwriter, in such proportion as is appropriate to reflect the relative fault of such Underwriter on the one hand and the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities or (iii) if the allocation provided by clause 9(e)(i) or 9(e)(ii) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 9(e)(i) above or the relative fault referred to in clause 9(e)(ii) but also the relative fault (in cases covered by clause 9(e)(i)) or such relative benefits (in cases covered by clause 9(e)(ii)) of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company or the Selling Stockholder on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Selling Stockholder and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company or the Selling Stockholder on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to or the amount paid Selling Stockholder or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters’ respective obligations to contribute pursuant to this Agreement.
(c) Section 9 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. The Company agrees that liability of the Selling Stockholder under the contribution agreement contained in case any legal proceeding this paragraph shall be brought against limited to an amount equal to the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason aggregate Public Offering Price of the performance of professional services rendered to the Company Shares sold by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered Selling Stockholder under this Agreement and/or the termination of this Agreement.
(f) With respect The Company, the Selling Stockholder and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party who may be indemnified by at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 9 and the above indemnity is not a party to representations, warranties and other statements of the Company and the Selling Stockholder contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, by or on behalf of the Selling Stockholder or any person controlling the Selling Stockholder, or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 2 contracts
Sources: Underwriting Agreement (Genworth Financial Inc), Underwriting Agreement (Genworth Financial Inc)
Indemnity and Contribution. (a) The Company shall Each of the Fund and the Investment Advisers, jointly and severally, agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectivelyeither Section 15 of the Securities Act or Section 20 of the Exchange Act, the “Indemnified Parties” and individually, an “Indemnified Party”) each agent of any Underwriter and each director, officer or affiliate of any Underwriter within the directors, officers, employees, shareholders, unitholders, advisors and agents meaning of Rule 405 under the Indemnified Parties (the “Personnel”) harmless Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim), (i) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any Omitting Prospectus, any preliminary prospectus (including any statement of additional information incorporated therein by reference), the Time of Sale Prospectus, or the Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company Fund or the Investment Advisers in writing by the Indemnified Party and its Personnel such Underwriter through you expressly for use therein or otherwise (ii) resulting from, related to or arising in connection with the matters referred to in this Agreement posting of any Omitting Prospectus, any preliminary prospectus (including the aggregate amount paid in reasonable settlement any statement of any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personneladditional information incorporated therein by reference), unless such actual the Time of Sale Prospectus, or threatened claim, action, suit, investigation the Prospectus or proceeding has been caused solely by any amendment or is supplement thereto on the result website of the gross negligenceFund, wilful misconduct the Adviser, the Sub-Adviser or fraud of the Indemnified Party or its Personnel. Without limiting the generality any affiliate of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnel.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless each of the Fund and the Investment Advisers, its directors or trustees (as the case may be), and each officer of the Fund who signs the Registration Statement and each person, if any, who controls the Fund or any Investment Adviser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity in Section 8(a)(i) from the Fund and the Investment Advisers to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Fund or the Investment Advisers in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus (including any statement of additional information incorporated therein by reference), the Time of Sale Prospectus, any Omitting Prospectus or Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, all persons who are agents of any Underwriter or all persons who are directors, officers and affiliates of any Underwriters within the meaning of Section 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Fund, its trustees, its officers who sign the Registration Statement and each person, if any, who controls the Fund within the meaning of either such Section, and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Investment Advisers, their directors or trustees, as the case may be, and each person, if any, who controls any of the Investment Advisers within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons, agents, directors, officers and affiliates of any Underwriters, such firm shall be designated in writing by the Representatives. In the case of any such separate firm for the Fund, and such trustees, officers and control persons of the Fund, such firm shall be designated in writing by the Fund. In the case of any such separate firm for the Investment Advisers, and such directors and control persons of the Investment Advisers, such firm shall be designated in writing by the Adviser. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Fund and the Investment Advisers on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 8(d)(i) above but also the relative fault of the Company Fund and the Indemnified Party and/or its PersonnelInvestment Advisers on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that . The relative benefits received by the Company shallFund and the Investment Advisers on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Fund and the total underwriting discounts and commissions received by the Underwriters, in any eventeach case as set forth in the table on the cover of the Prospectus, contribute bear to the amount paid aggregate Public Offering Price of the Shares. The relative fault of the Fund and the Investment Advisers on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Fund or any of the Investment Advisers or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters' respective obligations to contribute pursuant to this Section 8 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. Each of the Investment Advisers agrees to pay any amounts that are payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party Fund pursuant to this Agreement.
(c) The Company agrees paragraph to the extent that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is Fund fails to make all contributions required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing Fund pursuant to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counselthis Section 8.
(e) The indemnity Fund, the Investment Advisers and the Underwriters agree that it would not be just or equitable if contribution obligations pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the Company equitable considerations referred to in Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in addition connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreementindemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the Fund and each of the Investment Advisers contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter or any agent of any Underwriter or any director, officer and affiliate of any Underwriter or by or on behalf of any of the Investment Advisers, their officers or directors or any person controlling the Investment Advisers or by or on behalf of the Fund, its officers or trustees or any person controlling the Fund and (iii) acceptance of and payment for any of the Shares.
Appears in 2 contracts
Sources: Underwriting Agreement (First Trust New Opportunities MLP & Energy Fund), Underwriting Agreement (First Trust Intermediate Duration Preferred & Income Fund)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectively, either Section 15 of the “Indemnified Parties” and individually, an “Indemnified Party”) Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the directors, officers, employees, shareholders, unitholders, advisors and agents meaning of Rule 405 under the Indemnified Parties (the “Personnel”) harmless Securities Act from and against any and all expenses, losses (other than loss of profits), feeslosses, claims, actions damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim, but excluding loss of profits and other consequential damages) (collectively, “Damages”) caused by any misrepresentation or untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus (including shareholder actions, derivative actions or otherwisethe Canadian Preliminary Prospectus), damagesthe Time of Sale Prospectus or any amendment or supplement thereto, obligations any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any marketing materials, any Company information that the Company has filed, or liabilitiesis required to file, whether joint pursuant to Rule 433(d) under the Securities Act, any road show, or severalthe Prospectuses or any amendment or supplement thereto, or caused by any misrepresentation or omission or alleged misrepresentation or 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 Damages are caused by any such misrepresentation or untrue statement or omission or alleged misrepresentation or untrue statement or omission based upon (i) information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in paragraph (b) below, or (ii) the Selling Shareholder Information. The rights of indemnity contained in this paragraph will not inure to the benefit of an indemnified party in respect of a claim if the person asserting the claim, other than a person to which Subject Shares were offered and sold in the United States, was not provided by or on behalf of the Underwriters with a copy furnished promptly by the Company of any Prospectus or any amendment or supplement thereto which would have corrected any misrepresentation which is the basis of the claim and which was required under Canadian Securities Laws to be delivered to that person by the Underwriters.
(b) Each Selling Shareholder agrees, severally and not jointly (and not solidarily, nor jointly and severally), to indemnify and hold harmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all Damages caused by any misrepresentation or untrue statement or alleged untrue statement of a material fact in any Selling Shareholder Information relating to such Selling Shareholder contained in the Registration Statement or any amendment thereof, any preliminary prospectus (including the Canadian Preliminary Prospectus), the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any marketing materials, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any road show, or the Prospectuses or any amendment or supplement thereto, or caused by any misrepresentation or omission or alleged misrepresentation or omission to state in any Selling Shareholder Information related to such Selling Shareholder contained therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to any Selling Shareholder Information furnished in writing by or on behalf of such Selling Shareholder expressly for use therein. The liability of each Selling Shareholder under the indemnity agreement contained in this paragraph shall be limited to a maximum aggregate amount equal to the aggregate public offering price of the Shares, less the applicable underwriting discounts and commissions, sold by such Selling Shareholder under this Agreement. The rights of indemnity contained in this paragraph will not inure to the benefit of an indemnified party in respect of a claim if the person asserting the claim, other than a person to which Subject Shares were offered and sold in the United States, was not provided by or on behalf of the Underwriters with a copy furnished promptly by the Company of any Prospectus or any amendment or supplement thereto which would have corrected any misrepresentation which is the basis of the claim and which was required under Canadian Securities Laws to be delivered to that person by the Underwriters.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Shareholders, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or any Selling Shareholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus (including the Canadian Preliminary Prospectus), the Time of Sale Prospectus, any issuer free writing prospectus, marketing materials, road show, or the Prospectuses or any amendment or supplement thereto, it being understood and agreed that the only such information furnished by any Underwriter consists of the following information in the Prospectuses furnished on behalf of each Underwriter: the information contained in the twelfth through fifteenth paragraphs under the caption “Plan of Distribution” in the Time of Sale Prospectus and the U.S. Final Prospectus.
(d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 10(a), 10(b) or 10(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the reasonable fees and expenses of their such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, that may (ii) the indemnifying party has failed within a reasonable time to retain counsel for the indemnified party in accordance with the preceding sentence, or (iii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be incurred in advising with respect inappropriate due to and/or defending any actual or threatened claimspotential differing interests between them. It is understood that the indemnifying party shall not, actions, suits, investigations or proceedings to which in respect of the legal expenses of any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damages, liabilities or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Company by the Indemnified Party and its Personnel or otherwise indemnified party in connection with any proceeding or related proceedings in the matters referred same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel, which shall include counsel in each of the United States and Canada in the case of a matter involving U.S. and Canadian law) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel, which shall include counsel in each of the United States and Canada in the case of a matter involving U.S. and Canadian law) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel, which shall include counsel in each of the United States and Canada in the case of a matter involving U.S. and Canadian law) for all Selling Shareholders and all persons, if any, who control any Selling Shareholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by the Managers authorized to appoint counsel under this Agreement Section set forth in Schedule I-A hereto. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Shareholders and such control persons of any Selling Shareholders, such firm shall be designated in writing by such Selling Shareholders (including or, in the aggregate amount paid in reasonable case of Management Selling Shareholders, by the person named as attorney-in-fact for such Management Selling Shareholders under the POA and Custody Agreement). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such actionsconsent or if there be a final judgment for the plaintiff, suitsthe indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, investigationsif at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, proceedings 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 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless (i) such settlement includes an unconditional release of such indemnified party from all liability on claims that may be made against are the subject matter of such proceeding and (ii) does not include a statement as to, or an Indemnified Party and/or its Personnel)admission of, unless such actual fault, culpability or threatened claim, action, suit, investigation or proceeding has been caused solely a failure to act by or is the result on behalf of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnelindemnified party.
(be) If To the extent the indemnification provided for any reason the foregoing indemnification in Section 10(a), 10(b) or 10(c) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any Damages referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenseDamages (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the Offering or (ii) if the allocation provided by clause 10(e)(i) above is not permitted by applicable law, loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 10(e)(i) above but also the relative fault of the Company indemnifying party or parties on the one hand and of the Indemnified Party and/or its Personnel, as well as indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such Damages and any other relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees . The relative benefits received by the Indemnified Party Sellers on the one hand and the Underwriters on the other hand in connection with the Offering shall be deemed to be in the same respective proportions as the net proceeds from the Offering (before deducting expenses) received by each Seller and the total underwriting discounts and commissions received by the Underwriters bear to the aggregate initial public offering price of the Shares set forth in the U.S. Final Prospectus. The relative fault of the Sellers on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the misrepresentation or untrue statement of a material fact or alleged misrepresentation or untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Sellers or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such misrepresentation, statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Agreement.
(c) Section 10 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. The Company agrees that liability of each Selling Shareholder under the contribution agreement contained in case any legal proceeding this paragraph shall be brought against limited to a maximum aggregate amount equal to the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason aggregate public offering price of the performance of professional services rendered to Shares, less the Company applicable underwriting discounts and commissions, sold by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered Selling Shareholder under this Agreement and/or the termination of this Agreement.
(f) With respect The Sellers and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 10 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 10(e). The amount paid or payable by an indemnified party as a result of the Damages referred to in Section 10(e) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 10, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such misrepresentation or untrue statement or alleged misrepresentation or 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 remedies provided for in this Section 10 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party who may be indemnified by at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 10 and the above indemnity is not a party to representations, warranties and other statements of the Company and the Selling Shareholders contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such person.any Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, any Selling Shar
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Initial Purchaser and each person, if any, who controls any Initial Purchaser within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties (the “Personnel”) harmless Exchange Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in either Memorandum (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Initial Purchaser furnished to the Company in writing by such Initial Purchaser through you expressly for use therein; provided, -------- however, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity agreement with respect to the matters referred ------- Preliminary Memorandum shall not inure to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Initial Purchaser from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Securities, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Initial Purchaser, if a copy of the Final Memorandum (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Initial Purchaser to such person at or prior to delivery of written confirmation of the sale of the Securities to such person, and if the Final Memorandum (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 6(a) hereof.
(b) If Each Initial Purchaser agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Initial Purchaser, but only with reference to information relating to such Initial Purchaser furnished to the Company in writing by such Initial Purchaser through you expressly for use in either Memorandum or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, in the case of parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the foregoing prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is applicable by its terms but unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Initial Purchasers on the other hand from the offering of the Securities or (ii) if the allocation provided by clause (i) of this sentence is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) of this sentence but also the relative fault of the Company on the one hand and of the Initial Purchasers on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Initial Purchasers on the other hand but also in connection with the offering of the Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Securities (before deducting expenses) received by the Company and the total discounts and commissions received by the Initial Purchasers, bear to the aggregate offering price of the Securities. The relative fault of the Company on the one hand and of the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Initial Purchasers and the Indemnified Party and/or its Personnelparties' relative intent, as well as any relevant equitable considerations; provided that the Company shallknowledge, in any event, access to information and opportunity to correct or prevent such statement or omission. The Initial Purchasers' respective obligations to contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that Section 8 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective principal amount of Securities they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelInitial Purchasers agree that it would not be just or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(d). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 8, no Initial Purchaser shall be required to contribute any amount in excess of the amount by which the total price at which the Securities resold by it in the initial placement of such Securities were offered to investors exceeds the amount of any damages that such Initial Purchaser 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 remedies provided for in this Section 8 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) With respect to The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Initial Purchaser or any person controlling any Initial Purchaser or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Securities.
Appears in 1 contract
Sources: Purchase Agreement (Viropharma Inc)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectively, either Section 15 of the “Indemnified Parties” and individually, an “Indemnified Party”) Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the directors, officers, employees, shareholders, unitholders, advisors and agents meaning of Rule 405 under the Indemnified Parties (the “Personnel”) harmless Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim, but excluding loss of profits and other consequential damages) (collectively, liabilities “Damages”) caused by any misrepresentation or actions arise out untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus (including the Canadian Preliminary Prospectus), the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any marketing materials, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any road show, or the Prospectuses or any amendment or supplement thereto, or caused by any misrepresentation or omission or alleged misrepresentation or 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 Damages are based, directly caused by any such misrepresentation or indirectly, untrue statement or omission or alleged misrepresentation or untrue statement or omission based upon the performance of professional services rendered (i) information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in paragraph (b) below, or (ii) the Selling Shareholder Information. The rights of indemnity contained in this paragraph will not inure to the benefit of an indemnified party in respect of a claim if the person asserting the claim, other than a person to which Subject Shares were offered and sold in the United States, was not provided by or on behalf of the Underwriters with a copy furnished promptly by the Indemnified Party and its Personnel or otherwise in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement Company of any such actions, suits, investigations, proceedings Prospectus or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual any amendment or threatened claim, action, suit, investigation or proceeding has been caused solely by or supplement thereto which would have corrected any misrepresentation which is the result basis of the gross negligence, wilful misconduct or fraud of claim and which was required under Canadian Securities Laws to be delivered to that person by the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelUnderwriters.
(b) If for Each Selling Shareholder agrees, severally and not jointly (and not solidarily, nor jointly and severally), to indemnify and hold harmless each Underwriter, each person, if any, who controls any reason Underwriter within the foregoing indemnification is unavailable meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all Damages caused by any misrepresentation or untrue statement or alleged untrue statement of a material fact in any Selling Shareholder Information relating to an Indemnified Party such Selling Shareholder contained in the Registration Statement or its Personnel any amendment thereof, any preliminary prospectus (including the Canadian Preliminary Prospectus), the Time of Sale Prospectus or insufficient to hold an Indemnified Party any amendment or its Personnel harmlesssupplement thereto, then any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any marketing materials, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any road show, or the Prospectuses or any amendment or supplement thereto, or caused by any misrepresentation or omission or alleged misrepresentation or omission to state in any Selling Shareholder Information related to such Selling Shareholder contained therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to any Selling Shareholder Information furnished in writing by or on behalf of such Selling Shareholder expressly for use therein. The liability of each Selling Shareholder under the indemnity agreement contained in this paragraph shall contribute be limited to a maximum aggregate amount equal to the amount paid or payable aggregate public offering price of the Shares, less the applicable underwriting discounts and commissions, sold by such Selling Shareholder under this Agreement. The rights of indemnity contained in this paragraph will not inure to the benefit of an Indemnified Party and/or its Personnel as indemnified party in respect of a result of such expense, loss, claim if the person asserting the claim, damage other than a person to which Subject Shares were offered and sold in the United States, was not provided by or liability in such proportion as is appropriate to reflect not only on behalf of the relative benefits received Underwriters with a copy furnished promptly by the Company on of any Prospectus or any amendment or supplement thereto which would have corrected any misrepresentation which is the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault basis of the Company claim and the Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided which was required under Canadian Securities Laws to be delivered to that the Company shall, in any event, contribute to the amount paid or payable person by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this AgreementUnderwriters.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authorityEach Underwriter agrees, either domestic or foreignseverally and not jointly, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, indemnify and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from hold harmless the Company, the Indemnified Parties (Selling Shareholders, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or any one Selling Shareholder within the meaning of them) will notify either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus (including the Canadian Preliminary Prospectus), the Time of Sale Prospectus, any issuer free writing prospectus, marketing materials, road show, or the Prospectuses or any amendment or supplement thereto, it being understood and agreed that the only such information furnished by any Underwriter consists of the commencement thereof and, throughout following information in the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall Prospectuses furnished on behalf of itself each Underwriter: the information contained in the eleventh through fourteenth paragraphs under the caption “Plan of Distribution” in the Time of Sale Prospectus and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counselU.S. Final Prospectus.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf of such person.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold harmless the UnderwritersUnderwriter and each person, if any, who controls the Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of their subsidiaries and affiliates any Underwriter within the meaning of Rule 405 under the Securities Act (collectively, the “Indemnified Parties” and individuallyindemnified Underwriter parties”), an “Indemnified Party”) and each of the directors, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless Selling Shareholder from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon information relating to the performance of professional services rendered Underwriter furnished to the Company in writing by the Indemnified Party and its Personnel or otherwise in connection Underwriter expressly for use therein; provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including benefit of the aggregate amount paid in reasonable settlement of Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling the Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of the Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless the failure to send or give such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or Prospectus is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 7(a) hereof.
(b) If Each Selling Shareholder agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each indemnified Underwriter party from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only with reference to information relating to such Selling Shareholder furnished in writing by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that the only such information furnished by any such Selling Shareholder consists of the information about such Selling Shareholder under the caption “Selling Shareholders” in the Prospectus; provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of the Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Shares, or any person controlling the Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of the Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless the failure to send or give such Prospectus is the result of noncompliance by the Company with Section 7(a) hereof. Notwithstanding the provisions of this Section 8(b), no Selling Shareholder shall be required to pay an amount in excess of the net proceeds received by such Selling Shareholder from the Shares sold by it hereunder.
(c) The Underwriter agrees to indemnify and hold harmless the Company, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each Selling Shareholder to the same extent as the foregoing indemnity from the Company to the Underwriter, but only with reference to information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a), 8(b) or 8(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless 1) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or 2) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Underwriter and all persons, if any, who control the Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of the Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Selling Shareholders and all persons, if any, who control any Selling Shareholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriter and such control persons and affiliates of the Underwriter, such firm shall be designated in writing by the Underwriter. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Shareholders and such control persons of any Selling Shareholders, such firm shall be designated in writing by the Selling Shareholders. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the foregoing prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(e) To the extent the indemnification provided for in Section 8(a), 8(b) or 8(c) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 8(e)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 8(e)(i) above but also the relative fault of the Company indemnifying party or parties on the one hand and of the Indemnified Party and/or its Personnelindemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that . The relative benefits received by the Company shall, and the Selling Shareholders on the one hand and the Underwriter on the other hand in any event, contribute connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and each Selling Shareholder and the total underwriting discounts and commissions received by the Underwriter bear to the aggregate public offering price of the Shares. (For the purposes of this Section 8(e), the benefit to the Company shall be deemed to be equal to the total net proceeds from the offering of the Shares (before deducting expenses)). The relative fault of the Company or the Selling Shareholders on the one hand and the Underwriter on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Selling Shareholders or by the Underwriter and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. Notwithstanding the provisions of this Section 8(e), no Selling Shareholder shall be required to pay an amount in excess of the net proceeds received by such Selling Shareholder from the Shares sold by it hereunder.
(f) The Company, the Selling Shareholders and the Underwriter agree that it would not be just or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(e). The amount paid or payable by the Indemnified Party and/or its Personnel an indemnified party as a result of such expensethe losses, lossclaims, claimdamages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, damage or liabilitysubject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, the Underwriter shall not be required to contribute any amount in excess of such the amount over by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that the fees received Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the Indemnified Party pursuant 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 remedies provided for in this AgreementSection 8 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.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(eg) The indemnity and contribution obligations of provisions contained in this Section 8 and the Company shall be in addition to any liability which the Company may otherwise haverepresentations, shall extend upon the same terms warranties and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives other statements of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under Selling Shareholders contained in this Agreement and/or the 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 the Underwriter or any person controlling the Underwriter or any affiliate of the Underwriter, any Selling Shareholder or any person controlling any Selling Shareholder or by or on behalf of the Company, the officers or directors of the Company or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
(fh) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits The provisions of this indemnity in trust Section shall not supersede or otherwise affect any agreement that the Company and the Selling Shareholders may otherwise have for and on behalf the allocation of such personindemnity and contribution matters among themselves.
Appears in 1 contract
Sources: Underwriting Agreement (Montpelier Re Holdings LTD)
Indemnity and Contribution. (a) The Company shall and each Group 1 Selling Shareholder, jointly and severally, agree to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “Personnel”) harmless "Exchange Act"), from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; PROVIDED, HOWEVER, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 7(a) hereof.
(b) If for Each Group 2 Selling Shareholder agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each Underwriter and each person, if any, who controls any reason Underwriter within the foregoing indemnification is unavailable to an Indemnified Party meaning of either Section 15 of the Securities Act or its Personnel Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or insufficient to hold an Indemnified Party other expenses reasonably incurred in connection with defending or its Personnel harmlessinvestigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, then any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall contribute have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the amount paid statements therein not misleading, but only with reference to information relating to such Group 2 Selling Shareholder furnished in writing by or payable by an Indemnified Party and/or its Personnel as a result on behalf of such expense, loss, claim, damage or liability Group 2 Selling Shareholder expressly for use in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault of the Company and the Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liabilityRegistration Statement, any excess of such amount over preliminary prospectus, the amount of the fees received by the Indemnified Party pursuant to this AgreementProspectus or any amendments or supplements thereto.
(c) The Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Shareholders, the directors of the Company, the officers of the Company agrees that in case who sign the Registration Statement and each person, if any, who controls the Company or any Selling Shareholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal proceeding shall be brought against or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company and/or an Indemnified Party and/or its Personnel shall have furnished any amendments or supplements thereto), or caused by any governmental commission omission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is alleged omission to state therein a material fact required to testify in connection therewith be stated therein or shall be required necessary to respond make the statements therein not misleading, but only with reference to procedures designed information relating to discover information regarding, in connection with, or by reason of the performance of professional services rendered such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Indemnified Party and/or its PersonnelRegistration Statement, any preliminary prospectus, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (Prospectus or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party amendments or its Personnel in connection therewith shall be paid by the Company as they occursupplements thereto.
(d) Promptly after receipt of notice of the commencement of In case any legal proceeding against an Indemnified Party and/or (including any of its Personnel or after receipt of notice of the commencement of governmental investigation) shall be instituted involving any investigation, which is based, directly or indirectly, upon any matter person in respect of which indemnification indemnity may be sought from pursuant to paragraph (a), (b) or (c) of this Section 10, such person (the Company, the Indemnified Parties (or any one of them"indemnified party") will shall promptly notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce person against whom such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding indemnity may be made by sought (the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf of such person."indemnifying
Appears in 1 contract
Sources: Underwriting Agreement (Advanced Lighting Technologies Inc)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “Personnel”) harmless "EXCHANGE ACT"), from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus or any preliminary prospectus, in light of the circumstances under which they were made) not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; and provided further that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities, proceedings purchased Shares, or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law to have been so delivered at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 7(a) hereof.
(b) If for any reason the foregoing indemnification is unavailable to an Indemnified Party or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmless, then the Company shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault of the Company and the Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company Selling Stockholder agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold harmless each Underwriter and each person, if any who controls any Underwriter within the rights and benefits meaning of this indemnity in trust for and on behalf of such person.either
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold harmless the UnderwritersInitial Purchaser, each person, if any, who controls the Initial Purchaser within the meaning of their subsidiaries and affiliates (collectivelyeither Section 15 of the Securities Act or Section 20 of the Exchange Act, the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of the directors, officers, employees, shareholders, unitholders, advisors and agents Initial Purchaser within the meaning of Rule 405 under the Indemnified Parties (the “Personnel”) harmless Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in either Memorandum (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon information relating to the performance of professional services rendered Initial Purchaser furnished to the Company in writing by the Indemnified Party and its Personnel or otherwise in connection Initial Purchaser through you expressly for use therein; provided, however, that the foregoing indemnity agreement with respect to any Preliminary Memorandum shall not inure to the matters referred to in this Agreement (including benefit of the aggregate amount paid in reasonable settlement of Initial Purchaser from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Securities, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Initial Purchaser, if a copy of the Memorandum (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Initial Purchaser to such person at or prior to the written confirmation of the sale of the Securities to such person, and if the Memorandum (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 6(a) hereof.
(b) If The Initial Purchaser agrees to indemnify and hold harmless the Company, its directors, its officers and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to the Initial Purchaser, but only with reference to information relating to the Initial Purchaser furnished to the Company in writing by the Initial Purchaser expressly for use in either Memorandum or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, in the case of parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Initial Purchaser on the other hand from the offering of the Securities or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative fault of the Company on the one hand and of the Initial Purchaser on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Initial Purchaser on the other hand but also in connection with the offering of the Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Securities (before deducting expenses) received by the Company and the total discounts and commissions received by the Initial Purchaser bear to the aggregate offering price of the Securities. The relative fault of the Company on the one hand and of the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Initial Purchaser and the Indemnified Party and/or its Personnelparties' relative intent, as well as knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) The Company and the Initial Purchaser agree that it would not be just or equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation or by any relevant other method of allocation that does not take account of the equitable considerations; provided that the Company shall, considerations referred to in any event, contribute to the Section 8(d). The amount paid or payable by the Indemnified Party and/or its Personnel an indemnified party as a result of such expensethe losses, lossclaims, claimdamages and liabilities referred to in Section 8(d) shall be deemed to include, damage or liabilitysubject to the limitations set forth above, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any out-of-pocket legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses reasonably incurred by the Indemnified Party or its Personnel such indemnified party in connection therewith with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, the Initial Purchaser shall not be required to contribute any amount in excess of the amount by which the total price at which the Securities resold by it in the initial placement of such Securities were offered to investors exceeds the amount of any damages that the Initial Purchaser 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 paid by the Company as they occurentitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 8 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.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(ef) The indemnity and contribution obligations provisions contained in this Section 8 and the representations, warranties and other statements of the Company shall be contained in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement shall remain operative and shall be binding upon in full force and enure to the benefit effect regardless of (i) any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
, (fii) With respect to any party who may be indemnified investigation made by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and or on behalf of such personthe Initial Purchaser, any person controlling the Initial Purchaser or any affiliate of the Initial Purchaser or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Securities.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall and the Selling Stockholders that are Insiders, jointly and severally, agree to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectively, either Section 15 of the “Indemnified Parties” and individually, an “Indemnified Party”) Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the directorsmeaning of Rule 405 under the Securities Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however that the Indemnified Party and its Personnel foregoing indemnity agreement with respect to any preliminary prospectus or otherwise in connection with the matters referred Prospectus shall not inure to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased the Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, unless if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such actual Underwriter to such person, if required by law so to have been delivered, at or threatened prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, action, suit, investigation damage or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnelliability.
(b) If Each Selling Stockholder (other than the Selling Stockholders that are Insiders), jointly and severally, agrees to indemnify and hold harmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Selling Stockholder furnished in writing by or on behalf of such Selling Stockholder expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto. The aggregate liability of each Selling Stockholder that is not an Insider under the indemnity agreement contained in this paragraph and the contribution agreement contained in paragraphs 9(e) and (f) below shall be limited to an amount equal to the net proceeds received by such Selling Stockholder from the offering of the Shares sold by such Selling Stockholder under this Agreement.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Stockholders, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or any Selling Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Sellers to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a),9(b) or 9(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Selling Stockholders and all persons, if any, who control any Selling Stockholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Stockholders and such control persons of any Selling Stockholders, such firm shall be designated in writing by the persons named as attorneys-in-fact for the Selling Stockholders under the Powers of Attorney. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a), 9(b) or 9(c) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (v) in such proportion as is appropriate to reflect the relative benefits received by the Sellers on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 9(e)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 9(e)(i) above but also the relative fault of the Company Sellers on the one hand and of the Indemnified Party and/or its PersonnelUnderwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees . The relative benefits received by the Indemnified Party Sellers on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by each Seller and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Sellers on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Sellers or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Agreement.
(cSection 9 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. The aggregate liability of each Selling Stockholder under the contribution agreement contained in this paragraph and paragraph 9(f) The Company agrees that and under the indemnification agreement contained in case any legal proceeding paragraphs 9(a) and 9(b) above shall be brought against limited to an amount equal to the Company and/or an Indemnified Party and/or its Personnel net proceeds received by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate such Selling Stockholder from the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason offering of the performance of professional services rendered to the Company Shares sold by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered Selling Stockholder under this Agreement and/or the termination of this Agreement.
(f) With respect The Sellers and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party who may be indemnified by at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 9 and the above indemnity is not a party to representations, warranties and other statements of the Company and the Selling Stockholders contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, any Selling Stockholder or any person controlling any Selling Stockholder, or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Sources: Underwriting Agreement (Sirf Technology Holdings Inc)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each of their subsidiaries and affiliates (collectively▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank AG, the “Indemnified Parties” and individually, an “Indemnified Party”) Salomon Brothers AG and each other member of the directorsGerman listing consortium that is not an Underwriter, officersand each person, employeesif any, shareholders, unitholders, advisors and agents who controls any Underwriter within the meaning of either Section 15 of the Indemnified Parties (Securities Act, Section 20 of the “Personnel”) harmless Exchange Act or Section 17 of the German Stock Corporation Act, from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein PROVIDED, HOWEVER, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares or ADSs, proceedings or claims any person controlling such Underwriter, if it is established that may be made against an Indemnified Party and/or its Personnel)a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person at or prior to the written confirmation of the sale of the Shares or ADSs to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 9(i)(a) hereof.
(b) If Each Selling Shareholder, severally and not jointly, agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act, Section 20 of the Exchange Act or Section 17 of the German Stock Corporation Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or any Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with respect to information relating to such Selling Shareholder or any shareholder, general partner or limited partner or member of the Selling Shareholder, as the case may be, or any other person holding a direct or indirect equity interest in the Selling Shareholder, furnished to the Company in writing on behalf of the Selling Shareholder expressly for use therein.
(c) Each Selling Shareholder, severally and not jointly, agrees to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act, Section 20 of the Exchange Act or Section 17 of the German Stock Corporation Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or any Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with respect to information relating to such Selling Shareholder or any shareholder, general partner or limited partner or member of the Selling Shareholder, as the case may be, or any other person holding a direct or indirect equity interest in the Selling Shareholder, furnished to the Company in writing on behalf of the Selling Shareholder expressly for use therein.
(d) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement, and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act, Section 20 of the Exchange Act or Section 17 of the German Stock Corporation Act and each Selling Shareholder and each person, if any, who controls such Selling Shareholder within the meaning of either Section 15 of the Securities Act, Section 20 of the Exchange Act or Section 17 of the German Stock Corporation Act to the same extent as the foregoing indemnity from the Company or such Selling Shareholder to such Underwriter (including any legal or other expenses reasonably incurred by the Company in connection with defending or investigating any such actions or claim), but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(e) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Sections 11(a), 11(b), 11(c) or 11(d), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act, Section 20 of the Exchange Act or Section 17 of the German Stock Corporation Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for Carrier One LLC and for all Selling Shareholders and all persons, if any, who control Carrier One LLC or any Selling Shareholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons of any Underwriters, such firm shall be designated in writing by MSIL. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for Carrier One LLC, and such directors, officers and control persons of Carrier One LLC, such firm shall be designated in writing by Carrier One LLC. In the case of any such separate firm for the Selling Shareholders and such control persons of any Selling Shareholders, such firm shall be designated in writing by the persons named as attorneys-in-fact for the Selling Shareholders. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing paragraph, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the foregoing paragraph, 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 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. Notwithstanding the immediately preceding sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, an indemnifying party shall not be liable for any settlement effected without its consent if such indemnifying party (i) reimburses such indemnified party in accordance with such request to the extent such request is reasonable and made in good faith and (ii) provides written notice to the indemnified party substantiating the unpaid balance as unreasonable, in each case prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party (which consent shall not be unreasonably withheld), effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party.
(f) To the extent the indemnification provided for in Sections 11(a), 11(b), 11(c) or 11(d) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares and ADSs or (ii) if the allocation provided by Section 11(f)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in Section 11(f)(i) above but also the relative fault of the Company indemnifying party or parties on the one hand and of the Indemnified Party and/or its Personnelindemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that . The relative benefits received by the Company shallSellers on the one hand and the Underwriters on the other hand in connection with the offering of the Shares and ADSs shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares and ADSs (before deducting expenses) received by each Seller and the total underwriting discounts and commissions received by the Underwriters, in any eventeach case as set forth in the table on the cover of the Prospectus, contribute bear to the aggregate Offering Price of the Shares and ADSs. The relative fault of the Sellers on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Sellers or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters' respective obligations to contribute pursuant to this Section 11 are several in proportion to the respective number of Shares and ADSs they have purchased hereunder, and not joint.
(g) The Sellers and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 11 were determined by PRO RATA allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 11(f). The amount paid or payable by the Indemnified Party and/or its Personnel an indemnified party as a result of such expensethe losses, lossclaims, claimdamages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, damage or liabilitysubject to the limitations set forth above, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify expenses reasonably incurred by such indemnified party in connection therewith with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 11, no Underwriter shall be required to respond contribute any amount in excess of the amount by which the total price at which the Shares or ADSs underwritten by it and distributed to procedures designed the public were offered to discover information regarding, in connection with, or the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the performance meaning of professional services rendered Section 11(f) of the Securities Act) shall be entitled to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses contribution from any person who was not guilty of such counsel as well as the costs (including an amount fraudulent misrepresentation. The remedies provided for in this Section 11 are not exclusive and shall not limit any rights or remedies which may otherwise be available to reimburse the Indemnified Party for time spent by it and its Personnel any indemnified party at law or in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occurequity.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(eh) The indemnity and contribution obligations of provisions contained in this Section 11 and the Company shall be in addition to any liability which the Company may otherwise haverepresentations, shall extend upon the same terms warranties and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives other statements of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under Selling Shareholders contained in this Agreement and/or the shall remain operative and in full force and effect regardless of (i) any termination of this Agreement.
, (fii) With respect to any party who may be indemnified investigation made by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and or on behalf of such personany Underwriter or any person controlling any Underwriter, any Selling Shareholder or any person controlling any Selling Shareholder, or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares or ADSs.
Appears in 1 contract
Sources: Underwriting Agreement (Carrier1 International S A)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectively, either Section 15 of the “Indemnified Parties” and individually, an “Indemnified Party”) Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the directorsmeaning of Rule 405 under the Securities Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the F-6 Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto to the Representatives), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of any preliminary prospectus or the Prospectus, in the light of the circumstances in which they were made), except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Indemnified Party and its Personnel Representatives expressly for use therein; provided, that the foregoing indemnity agreement with respect to any preliminary prospectus or otherwise in connection with the matters referred Prospectus shall not inure to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased ADSs, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the ADSs to such person, and if the Prospectus (as so amended or supplemented) would have corrected the untrue statement or omission or a material fact giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 6(a) hereof.
(b) If for Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any reason and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the foregoing indemnification is unavailable to an Indemnified Party Registration Statement or its Personnel any amendment thereof, any preliminary prospectus or insufficient to hold an Indemnified Party the Prospectus (as amended or its Personnel harmless, then supplemented if the Company shall contribute have furnished any amendments or supplements thereto to the amount paid Representatives), or payable caused by an Indemnified Party and/or its Personnel as any omission or alleged omission to state therein a result material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of any preliminary prospectus or the Prospectus, in the light of the circumstances under which they were made), but only with reference to information relating to such expense, loss, claim, damage or liability in such proportion as is appropriate Underwriter furnished to reflect not only the relative benefits received by the Company on in writing by such Underwriter through the one hand and Representatives expressly for use in the Indemnified Party and/or its Personnel on the other hand but also the relative fault of the Company and the Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liabilityRegistration Statement, any excess of such amount over preliminary prospectus, the amount of the fees received by the Indemnified Party pursuant to this AgreementProspectus or any amendments or supplements thereto.
(c) The Company agrees that in In case any legal proceeding (including any governmental investigation) shall be brought instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) above, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority“indemnifying party”) in writing and the indemnifying party, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason upon request of the performance of professional services rendered indemnified party, shall retain counsel reasonably satisfactory to the Company by indemnified party to represent the Indemnified Party and/or its Personnelindemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, the Indemnified Party any indemnified party shall have the right to employ retain its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and but the fees and expenses of such counsel as well as shall be at the costs expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including an amount to reimburse any impleaded parties) include both the Indemnified Party for time spent by it indemnifying party and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result indemnified party and representation of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred both parties by the Indemnified Party same counsel would be inappropriate due to actual or its Personnel in connection therewith potential differing interests between them. It is understood that the indemnifying party shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigationnot, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence legal expenses of any suit brought to enforce such legal proceeding; providedindemnified party in connection with any proceeding or related proceedings in the same jurisdiction, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement (i) the fees and expenses of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own more than one separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
firm (e) The indemnity and contribution obligations of the Company shall be in addition to any liability which local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act and (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company may otherwise havewithin the meaning of either such Section. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and such firm shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified designated in writing by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf of such person.the
Appears in 1 contract
Sources: International Underwriting Agreement (Mexican Economic Development Inc)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (collectivelythe "EXCHANGE ACT"), the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Underwriter within the directorsmeaning of Rule 405 under the Securities Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by the Indemnified Party and its Personnel or otherwise in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelUnderwriter through you expressly for use therein.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by Morgan Stanley & Co. Incorporated, in the case of parties indemnified p▇▇▇▇▇▇▇ to Section 7(a), and by the Company, in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.. No indemnifying party shall, without the foregoing prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 7(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 7(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 7 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Shares they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelUnderwriters agree that it would not be just or equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 7(d). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 7 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the Underwritersmeaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of their subsidiaries and affiliates any Underwriter within the meaning of Rule 405 under the Securities Act (collectively, the “Indemnified Parties” and individuallyindemnified Underwriter parties”), an “Indemnified Party”) and each of the directors, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless Selling Shareholder from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless the failure to send or give such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or Prospectus is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 7(a) hereof.
(b) If Each Selling Shareholder agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each indemnified Underwriter party from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only with reference to information relating to such Selling Shareholder furnished in writing by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that the only such information furnished by any such Selling Shareholder consists of the information about such Selling Shareholder under the caption “Selling Shareholders” in the Prospectus; provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Shares, or any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless the failure to send or give such Prospectus is the result of noncompliance by the Company with Section 7(a) hereof. Notwithstanding the provisions of this Section 8(b), no Selling Shareholder shall be required to pay an amount in excess of the net proceeds received by such Selling Shareholder from the Shares sold by it hereunder.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each Selling Shareholder to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a), 8(b) or 8(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless 1) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or 2) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Selling Shareholders and all persons, if any, who control any Selling Shareholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Shareholders and such control persons of any Selling Shareholders, such firm shall be designated in writing by the Selling Shareholders. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the foregoing prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 8(a), 8(b) or 8(c) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 8(e)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 8(e)(i) above but also the relative fault of the Company indemnifying party or parties on the one hand and of the Indemnified Party and/or its Personnelindemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that . The relative benefits received by the Company shalland the Selling Shareholders on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and each Selling Shareholder and the total underwriting discounts and commissions received by the Underwriters, in any eventeach case as set forth in the table on the cover of the Prospectus, contribute bear to the aggregate Public Offering Price of the Shares. (For the purposes of this Section 8(e), the benefit to the Company shall be deemed to be equal to the total net proceeds from the offering of the Shares (before deducting expenses)). The relative fault of the Company or the Selling Shareholders on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Selling Shareholders or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 8 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. Notwithstanding the provisions of this Section 8(e), no Selling Shareholder shall be required to pay an amount in excess of the net proceeds received by such Selling Shareholder from the Shares sold by it hereunder.
(f) The Company, the Selling Shareholders and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(e). The amount paid or payable by the Indemnified Party and/or its Personnel an indemnified party as a result of such expensethe losses, lossclaims, claimdamages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, damage or liabilitysubject to the limitations set forth above, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify expenses reasonably incurred by such indemnified party in connection therewith with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, no Underwriter shall be required to respond contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to procedures designed the public were offered to discover information regarding, in connection with, or the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the performance meaning of professional services rendered Section 11(f) of the Securities Act) shall be entitled to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses contribution from any person who was not guilty of such counsel as well as the costs (including an amount fraudulent misrepresentation. The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to reimburse the Indemnified Party for time spent by it and its Personnel any indemnified party at law or in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occurequity.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(eg) The indemnity and contribution obligations of provisions contained in this Section 8 and the Company shall be in addition to any liability which the Company may otherwise haverepresentations, shall extend upon the same terms warranties and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives other statements of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under Selling Shareholders contained in this Agreement and/or the 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 Underwriter or any person controlling any Underwriter or any affiliate of any Underwriter, any Selling Shareholder or any person controlling any Selling Shareholder or by or on behalf of the Company, the officers or directors of the Company or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
(fh) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits The provisions of this indemnity in trust Section shall not supersede or otherwise affect any agreement that the Company and the Selling Shareholders may otherwise have for and on behalf the allocation of such personindemnity and contribution matters among themselves.
Appears in 1 contract
Sources: Underwriting Agreement (Montpelier Re Holdings LTD)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Selling Stockholder and each person, if any, who controls any Underwriter or Selling Stockholder within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “Personnel”) harmless "EXCHANGE ACT"), from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have made any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; PROVIDED that the Indemnified Party and its Personnel foregoing indemnity agreement with respect to any preliminary prospectus or otherwise in connection with the matters referred Prospectus shall not inure to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented, if the Company shall have made against an Indemnified Party and/or its Personnel)any amendments or supplements) was not sent or given by or on behalf of such Underwriter to such person, unless if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such actual person, and if the Prospectus (as so amended or threatened supplemented) would have cured the defect giving rise to such loss, claim, action, suit, investigation damage or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnelliability.
(b) If for Each Selling Stockholder agrees, severally and not jointly, to indemnify and hold harmless each Underwriter, the Company and each person, if any, who controls any reason Underwriter or the foregoing indemnification is unavailable to an Indemnified Party Company within the meaning of either Section 15 of the Securities Act or its Personnel Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or insufficient to hold an Indemnified Party other expenses reasonably incurred in connection with defending or its Personnel harmlessinvestigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, then any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall contribute have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading, but only with reference to information relating to such Selling Stockholder furnished to the amount paid Company in writing by or payable by an Indemnified Party and/or its Personnel as a result on behalf of such expenseSelling Stockholder expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto; PROVIDED that the foregoing indemnity agreement with respect to any preliminary prospectus or the Prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Shares, or any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented, if the Company shall have made any amendments or supplements) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault of the Company and the Indemnified Party and/or its PersonnelPROVIDED, as well as any relevant equitable considerations; provided FURTHER, that the Company shall, in any event, contribute to the aggregate amount paid or of all indemnification reimbursement payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party Selling Stockholder pursuant to this AgreementAgreement shall in no case exceed the net proceeds to such Selling Stockholder from the sale of the Secondary Shares.
(c) The Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, each Selling Stockholder, the directors of the Company, the officers of the Company agrees that in case who sign the Registration Statement and each person, if any, who controls the Company or any Selling Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal proceeding shall be brought against or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company and/or an Indemnified Party and/or its Personnel shall have made any amendments or supplements thereto), or caused by any governmental commission omission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is alleged omission to state therein a material fact required to testify be stated therein or necessary to make the statements therein not misleading (in connection therewith or shall be required to respond to procedures designed to discover information regardingthe case of the Prospectus, in connection with, or by reason light of the performance of professional services rendered circumstances under which they were made), but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Indemnified Party and/or its PersonnelRegistration Statement, any preliminary prospectus, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (Prospectus or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party amendments or its Personnel in connection therewith shall be paid by the Company as they occursupplements thereto.
(d) Promptly after receipt of notice of the commencement of In case any legal proceeding against an Indemnified Party and/or (including any of its Personnel or after receipt of notice of the commencement of governmental investigation) shall be instituted involving any investigation, which is based, directly or indirectly, upon any matter person in respect of which indemnification indemnity may be sought from pursuant to Section 9(a), 9(b) or 9(c), such person (the Company, the Indemnified Parties (or any one of them"INDEMNIFIED PARTY") will shall promptly notify the Company person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; providedindemnifying party, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf of such person.upon
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall Corporation agrees to indemnify and hold the Underwritersharmless each Underwriter, and each of their subsidiaries respective officers, employees and affiliates (collectivelyagents, the “Indemnified Parties” and individually, an “Indemnified Party”) and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties (Exchange Act, and each affiliate of any Underwriter within the “Personnel”) harmless meaning of Rule 405 under the Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions damages and liabilities (including shareholder actionsincluding, derivative actions without limitation, any legal or otherwiseother expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by or based upon, directly or indirectly:
(i) any untrue statement or alleged untrue statement of a material fact contained or incorporated by reference in the Registration Statement or any amendment thereof, any Preliminary Prospectus, the Time of Sale Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Corporation information that the Corporation has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, or the Prospectuses or any amendment or supplement thereto, or any Marketing Materials or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading (in the light of the circumstances under which they were made, in each case other than the Registration Statement), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, except insofar as such expenses, losses, claims, damages, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company Corporation in writing by such Underwriter through you expressly for use therein;
(ii) the Indemnified Party non-compliance or alleged non-compliance of the Corporation with any requirement of Canadian Securities Laws or the Securities Act and its Personnel the applicable rules and regulations of the Commission thereunder or otherwise stock exchange requirements in connection with this offering of the matters referred to Shares;
(iii) any breach by the Corporation of any representation or warranty contained in this Agreement Agreement; or
(including the aggregate amount paid in reasonable settlement of iv) any such actions, suits, investigations, proceedings order made or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suitinquiry, investigation or proceeding has been caused solely commenced or threatened by any securities regulatory authority, stock exchange or is by any competent authority which prevents or restricts the result trading in or sale of the gross negligence, wilful misconduct Corporation’s securities or fraud the distribution of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of Shares in any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personneljurisdiction.
(b) If In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 10(a), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (iii) the indemnifying party does not assume the defence of the proceeding on behalf of the indemnified party within a reasonable period of time after receiving notice thereof or, having assumed such defence, fails to pursue it diligently. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters, and all of their respective officers, employees and agents, and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act and (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Corporation, the officers of the Corporation who sign the Registration Statement and each person, if any, who controls the Corporation within the meaning of either such Section. In the case of any such separate firm for the Underwriters and such officers, employees and agents, and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by TDSI. In the case of any such separate firm for the Corporation, officers of the Corporation and control persons of the Corporation, such firm shall be designated in writing by the Corporation. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested the indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by the indemnifying party of the aforesaid request and (ii) the indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. The indemnifying party shall not, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(c) To the extent the indemnification provided for in Section 10(a) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company Corporation, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Corporation on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 10(c)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 10(c)(i) above but also the relative fault of the Company Corporation on the one hand and of the Indemnified Party and/or its Personnelindemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that . The relative benefits received by the Company shallCorporation on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Corporation and the total underwriting discounts and commissions received by the Underwriters, in any eventeach case as set forth in the table on the cover of each of the Prospectuses, contribute bear to the aggregate Public Offering Price of the Shares. The relative fault of the Corporation on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Corporation or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 10 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint (nor joint and several).
(d) The Corporation and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 10 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 10(c). The amount paid or payable by the Indemnified Party and/or its Personnel an indemnified party as a result of such expensethe losses, lossclaims, claimdamages and liabilities referred to in Section 10(c) shall be deemed to include, damage or liabilitysubject to the limitations set forth above, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify expenses reasonably incurred by such indemnified party in connection therewith with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 10, (i) no Underwriter shall be required to respond contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to procedures designed the public were offered to discover information regarding, in connection with, or the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and (ii) no person guilty of fraudulent misrepresentation (within the performance meaning of professional services rendered Section 11(f) of the Securities Act) shall be entitled to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses contribution from any person who was not guilty of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnelfraudulent misrepresentation. The Company remedies provided for in this Section 10 are not exclusive and shall on behalf of itself and the Indemnifying Parties and/or its Personnel not limit any rights or remedies which may otherwise be entitled (but not required) available to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented indemnified party at law or in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counselequity or otherwise.
(e) The indemnity and contribution obligations provisions contained in this Section 10 and the representations, warranties and other statements of the Company shall be Corporation contained in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement shall remain operative and shall be binding upon in full force and enure to the benefit effect regardless of (i) any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter, and any of their respective officers, employees or agents, any person controlling any Underwriter, or any affiliate of any Underwriter, or by or on behalf of the Corporation, its officers or directors or any person controlling the Corporation and (iii) acceptance of and payment for any of the Shares.
(f) The indemnifying party hereby acknowledges and agrees that, with respect to this Section 10, the Underwriters are contracting on their own behalf and as agents for their affiliates, directors, officers, employees and agents and their respective affiliates, directors, officers, employees and agents (collectively, the “Beneficiaries”). In this regard, each of the Underwriters will act as trustee for the Beneficiaries of the covenants of the indemnifying party under this Section 10 with respect to the Beneficiaries and accepts these trusts and will hold and enforce those covenants on behalf of the Beneficiaries.
(g) Provided that DBSI has not terminated and cancelled its obligations under this Agreement to purchase the Shares in accordance with Section 11, DBSI agrees that if any losses (other than loss of profits), claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) (collectively, “Claims”) are made against an indemnified party (and such Claims did not include DBSI on the basis that DBSI did not sign the underwriters’ certificate to the Prospectuses and such Claims would have included DBSI if it had signed such certificate) under Section 130 of the Securities Act (Ontario), or the equivalent provisions of the Canadian Securities Laws in the other Canadian Qualifying Jurisdictions, based upon a misrepresentation or alleged misrepresentation in the Prospectuses, and such indemnified party is determined by a court of competent jurisdiction or other governmental authority in a final judgment or decision from which no appeal can be made to be liable pursuant to such laws in respect of such Claims and such indemnified party does pay such Claims (the “Liability Amount”), then DBSI shall indemnify such indemnified party from against the Liability Amount for DBSI’s pro rata share of such Liability Amount, on the basis of and assuming that DBSI had signed the underwriters’ certificate to the Prospectuses, but only to the extent of its underwriting obligation under Section 3. DBSI shall further indemnify such indemnified party, without regard to the final outcome of any such Claims, for DBSI’s pro rata share of any legal and other expenses reasonably incurred and paid by such indemnified party in connection with the investigation or defense of any such Claims (the “Indemnified Expenses”). For the purposes of determining the aggregate amount that DBSI is obligated to indemnify all other indemnified parties, “pro rata” will be based on the number of Firm Shares set forth opposite the name of each Underwriter in Schedule I divided by the total number of Firm Shares as compared to the total number of Firm Shares. For the avoidance of doubt, the maximum aggregate amount which DBSI is required to indemnify the other indemnified parties under this Section 10(g) shall be the lesser of (i) 8.0% of the total Liability Amount and Indemnified Expenses and (ii) the total public offering price of the Shares DBSI is required to place or purchase pursuant to this Agreement. The amount payable by DBSI to the indemnified parties pursuant to this Section 10(g) shall be reduced to the extent that DBSI is required to pay damages directly to plaintiffs under Canadian Securities Laws in connection with the Claim or Claims that are the subject matter of the indemnification being sought. Further, DBSI will only be required to make payment to an indemnified party pursuant to this Section 10(g) if such indemnified party has used reasonable commercial efforts to be reimbursed for the Liability Amount and Indemnified Expenses pursuant to Section 10 but has not been fully reimbursed. If any Claim is asserted against any indemnified party that is or may be subject to indemnification under this Section 10(g), the indemnified party will notify DBSI in writing as soon as possible of the particulars of such Claim (but the omission so to notify DBSI of any potential Claim shall not relieve DBSI from any liability which it may have to any indemnified party and any omission so to notify DBSI of any actual Claim shall affect DBSI’s liability only to the extent that DBSI is actually and materially prejudiced by that failure). DBSI agrees that to the extent DBSI is not a party to such Claim the other Underwriters will be entitled to conduct the defence of any such action or proceeding brought to enforce such Claim, and DBSI’s liability hereunder shall not be reduced in any way based upon the conduct of such defense unless the indemnified party are determined to be grossly negligent (by a court of competent jurisdiction in a final judgment from which no appeal can be made) in conducting such defence. The Underwriters shall provide DBSI with notice of any material developments in the action or proceeding. With respect to any indemnified party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters other than DBSI shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf of such person.an
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall Sellers, jointly and severally, agree to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (collectivelythe "Exchange Act"), the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Underwriter within the directorsmeaning of Rule 405 under the Securities Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein or resulted from the Indemnified Party and its Personnel bad faith or otherwise in connection gross negligence of such Underwriter; provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligenceCompany with Section 6(a) hereof; provided, wilful misconduct further, that the Selling Stockholder shall not be responsible, pursuant to the indemnity agreement contained in this paragraph, for losses, expenses, liability or fraud claims arising out of or based upon such untrue statement or omission or allegation thereof based upon information furnished by any party other than such Selling Stockholder and, in any event, the liability of the Indemnified Party or its Personnel. Without limiting Selling Stockholder under the generality indemnity agreement contained in this paragraph shall be limited to an amount equal to the aggregate Public Offering Price of the foregoingShares sold by such Selling Shareholder under this Agreement.
(a) Each Underwriter agrees, this severally and not jointly, to indemnify and hold harmless the Company, the Selling Stockholder, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or the Selling Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity shall apply from the Company to all expenses (including reasonable legal expenses)such Underwriter, lossesbut only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, claims and liabilities that any preliminary prospectus, the Indemnified Parties and/or their Personnel may incur as a result of Prospectus or any action amendments or litigation that may be threatened or brought against an Indemnified Party and/or its Personnelsupplements thereto.
(b) If In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Selling Stockholder and all persons, if any, who control the Selling Stockholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Stockholder and such control persons of the Selling Stockholder, such firm shall be designated in writing by the persons named as attorneys-in-fact for the Selling Stockholder under the Powers of Attorney. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(c) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 8(d)(i) above but also the relative fault of the Company indemnifying party or parties on the one hand and of the Indemnified Party and/or its Personnelindemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that . The relative benefits received by the Company shallSellers on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by each Seller and the total underwriting discounts and commissions received by the Underwriters, in any eventeach case as set forth in the table on the cover of the Prospectus, contribute bear to the aggregate Public Offering Price of the Shares. The relative fault of the Sellers on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Sellers or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters' respective obligations to contribute pursuant to this Section 8 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. The liability of the Selling Stockholder under the contribution agreement contained in this paragraph shall be limited to an amount equal to the aggregate Public Offering Price of the Shares sold by such Selling Stockholder under this Agreement.
(d) The Sellers and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(d). The amount paid or payable by the Indemnified Party and/or its Personnel an indemnified party as a result of such expensethe losses, lossclaims, claimdamages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, damage or liabilitysubject to the limitations set forth above, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify expenses reasonably incurred by such indemnified party in connection therewith with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, no Underwriter shall be required to respond contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to procedures designed the public were offered to discover information regarding, in connection with, or the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the performance meaning of professional services rendered Section 11(f) of the Securities Act) shall be entitled to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses contribution from any person who was not guilty of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnelfraudulent misrepresentation. The Company remedies provided for in this Section 8 are not exclusive and shall on behalf of itself and the Indemnifying Parties and/or its Personnel not limit any rights or remedies which may otherwise be entitled (but not required) available to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented indemnified party at law or in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counselequity.
(e) The indemnity and contribution obligations of provisions contained in this Section 8 and the Company shall be in addition to any liability which the Company may otherwise haverepresentations, shall extend upon the same terms warranties and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives other statements of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under Selling Stockholder contained in this Agreement and/or the shall remain operative and in full force and effect regardless of (i) any termination of this Agreement.
, (fii) With respect to any party who may be indemnified investigation made by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, the Selling Stockholder or any person controlling any Selling Stockholder, or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall Bank and Holding, jointly and severally, agree to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “Personnel”) harmless "Exchange Act"), from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, liabilities without limitation, any legal or actions arise out of other expenses reasonably incurred by any Underwriter or are based, directly or indirectly, upon the performance of professional services rendered to the Company by the Indemnified Party and its Personnel or otherwise any such controlling person in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the matters referred Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Bank or Holding shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Bank or Holding in this Agreement (including writing by such Underwriter through you expressly for use therein, provided, however, that the aggregate amount paid in reasonable settlement foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Securities, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Bank or Holding shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Securities to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelBank with section 8(a) hereof.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Bank and Holding, the directors of the Bank and Holding, the officers of the Bank and Holding who sign the Registration Statement and each person, if any, who controls the Bank or Holding within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Bank and Holding to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Bank or Holding in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either paragraph (a) or (b) of this Section 8, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by ABN AMRO Incorporated, in the case of parties indemnified pursuant to paragraph (a) above and by the Bank and Holding, in the case of parties indemnified pursuant to paragraph (b) above. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or (b) of this Section 8 is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Bank and Holding on the one hand and the Underwriters on the other hand from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause (i) above but also the relative fault of the Company Bank and Holding on the Indemnified Party and/or its Personnelone hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees . The relative benefits received by the Indemnified Party Bank and Holding and Holding on the one hand and the Underwriters on the other hand in connection with the offering of the Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Securities (before deducting expenses) received by the Bank and Holding and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Securities. The relative fault of the Bank and Holding on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Bank and Holding or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 8 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective principal amounts of Securities they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity Bank and Holding and the Underwriters agree that it would not be just or equitable if contribution obligations pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the Company equitable considerations referred to in paragraph (d) of this Section 8. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in addition connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreementindemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the Bank and Holding contained in this Agreement shall remain operative and in full force and effect regardless of (a) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (b) any investigation made by or on behalf of such personany Underwriter or any person controlling any Underwriter or by or on behalf of the Bank or Holding, their officers or directors or any person controlling the Bank or Holding and (c) acceptance of and payment for any of the Securities.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall Sellers, jointly and severally, agree to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “Personnel”) harmless "EXCHANGE ACT"), from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Indemnified Party and its Personnel or otherwise in connection Representatives expressly for use therein; provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 7(a) hereof.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Shareholders, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or any Selling Shareholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a) or 9(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Selling Shareholders and all persons, if any, who control any Selling Shareholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons of any Underwriters, such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Shareholders and such control persons of any Selling Shareholders, such firm shall be designated in writing by the persons named as attorneys-in-fact for the Selling Shareholders under the Power of Attorney and Custody Agreement. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 9(a) or 9(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 9(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 9(d)(i) above but also the relative fault of the Company indemnifying party or parties on the one hand and of the Indemnified Party and/or its Personnelindemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees . The relative benefits received by the Indemnified Party Sellers on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by each Seller and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Sellers on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Sellers or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 9 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Shares they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelUnderwriters agree that it would not be just or equitable if contribution pursuant to this Section 9 were determined by PRO RATA allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(d). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 9, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 9 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) With respect to The indemnity and contribution provisions contained in this Section 9 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits termination of this indemnity in trust for and Agreement,(ii) any investigation made by or on behalf of any Underwriter or any person controlling any Underwriter, any Selling Shareholder or any person controlling any Selling Shareholder, or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
(g) The obligation of each Selling Shareholder to indemnify or provide contribution to any person or party under this Section 9 shall be limited to an amount equal to the aggregate net proceeds to such personSelling Shareholder from the sale of such Shares sold by such Selling Shareholder hereunder.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries either Section 15 of the Securities Act or Section 20 of the Exchange Act, and affiliates (collectively, each affiliate of any Underwriter within the “Indemnified Parties” and individually, an “Indemnified Party”) meaning of Rule 405 under the Securities Act and each of the its officers, directors, officers, employees, shareholders, unitholders, advisors agents and agents of the Indemnified Parties (the “Personnel”) harmless representatives from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by the Indemnified Party and its Personnel or otherwise such Underwriter through you expressly for use therein; provided, however, that, in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actionsloss, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation damage or proceeding has been caused solely by liability arising from any untrue statement or is the result of the gross negligence, wilful misconduct omission or fraud of the Indemnified Party alleged untrue statement or its Personnel. Without limiting the generality of the foregoingomission contained in any Preliminary Prospectus, this indemnity agreement shall apply not inure to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result benefit of any action Underwriter with respect to the sale of the Securities to any person by that Underwriter if that Underwriter failed to send or litigation that give a copy of the Prospectus, as the same may be threatened amended or brought against an Indemnified Party and/or its Personnelsupplemented, to that person within the time required by the Securities Act, and the untrue statement or omission or alleged untrue statement or omission contained in such Preliminary Prospectus was eliminated or corrected in the final Prospectus.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by you, in the case of parties indemnified pursuant to Section 7(a), and by the Company, in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Securities or (ii) if the allocation provided by clause 7(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 7(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Securities (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Securities. The relative fault of the Company on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 7 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Securities they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelUnderwriters agree that it would not be just or equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 7(d). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect Section 7, no Underwriter shall be required to contribute any party who may be indemnified amount in excess of the amount by which the above indemnity is not a party total price at which the Securities underwritten by it and distributed to this Agreement, the Underwriters shall obtain and hold public were offered to the rights and benefits public exceeds the amount of this indemnity in trust for and on behalf any damages that such Underwriter has otherwise been required to pay by reason of such person.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 remedies provided for in this
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall Sellers, jointly and severally, agree to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) and each either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “PersonnelExchange Act”) harmless ), and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act, from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity agreement with respect to the matters referred preliminary prospectus shall not inure to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of the Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased the Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling the Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of the Underwriter to such person, if required by law to have been so delivered, at or prior to the written confirmation of the sale of Shares to such person, and if the Prospectus (as so amended or so supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud Company of Section 7(a) hereof. The liability of each Selling Stockholder under the indemnification agreement contained in this paragraph shall be limited to an amount equal to the aggregate Public Offering Price of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, Shares sold by such Selling Stockholder under this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelAgreement.
(b) If Each Selling Stockholder agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Selling Stockholder furnished in writing by or on behalf of such Selling Stockholder expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplements thereto.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Stockholders, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or any Selling Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (x) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (y) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning either Section 15 of the Securities Act or Section 20 of the Exchange Act and (z) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Selling Stockholders and all persons, if any, who control any Selling Stockholder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and any such control person or affiliate of any Underwriter, such firm shall be designated in writing by M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. Incorporated. In the case of any such separate firm for the Company and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Stockholders, such firm shall be designated in writing by the entity named as attorney-in-fact for the Selling Stockholders under the Powers of Attorney. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment that is indemnifiable pursuant to Section 9(a), 9(b) or 9(c), as the foregoing case may be. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding. The liability of each Selling Stockholder under the contribution agreement contained in this paragraph shall be limited to an amount equal to the aggregate Public Offering Price of the Shares sold by such Selling Stockholder under this Agreement.
(e) To the extent the indemnification provided for in Section 9(a), 9(b) or 9(c) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Selling Stockholders, damage on the one hand, and the Underwriters, on the other hand, from the offering of the Shares or liability (ii) if the allocation provided by clause 9(e)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 9(e)(i) above but also the relative fault of the Company and the Indemnified Party and/or its PersonnelSelling Stockholders, on the one hand, and of the Underwriters, on the other hand, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that . The relative benefits received by the Company shalland the Selling Stockholders, on the one hand, and the Underwriters, on the other hand, in any eventconnection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the Selling Stockholders and the total underwriting discounts and commissions received by the Underwriters, contribute in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company and the Selling Stockholders, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Selling Stockholders, on the one hand, or by the Underwriters, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 9 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint.
(f) The Company, the Selling Stockholders and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(e). The amount paid or payable by the Indemnified Party and/or its Personnel an indemnified party as a result of such expensethe losses, lossclaims, claimdamages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, damage or liabilitysubject to the limitations set forth above, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify expenses reasonably incurred by such indemnified party in connection therewith with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, no Underwriter shall be required to respond contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to procedures designed the public were offered to discover information regarding, in connection with, or the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the performance meaning of professional services rendered Section 11(f) of the Securities Act) shall be entitled to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses contribution from any person who was not guilty of such counsel as well as the costs (including an amount fraudulent misrepresentation. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies which may otherwise be available to reimburse the Indemnified Party for time spent by it and its Personnel any indemnified party at law or in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occurequity.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(eg) The indemnity and contribution obligations provisions contained in this Section 9 and the representations, warranties and other statements of the Company shall be contained in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement shall remain operative and shall be binding upon in full force and enure to the benefit effect regardless of (i) any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
, (fii) With respect to any party who may be indemnified investigation made by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, any Selling Stockholder or any person or entity controlling any Selling Stockholder, or the Company or its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall and the Selling Shareholders, jointly and severally, agree to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “Personnel”) harmless "EXCHANGE ACT"), from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, liabilities without limitation, any legal or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Company by the Indemnified Party and its Personnel or otherwise other expenses reasonably incurred in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of defending or investigating any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened claim) caused by any untrue statement or brought against an Indemnified Party and/or its Personnel.
alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (b) If for any reason the foregoing indemnification is unavailable to an Indemnified Party as amended or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmless, then supplemented if the Company shall contribute to the amount paid have furnished any amendments or payable by an Indemnified Party and/or its Personnel as a result of such expensesupplements thereto), loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault of the Company and the Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel caused by any governmental commission omission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is alleged omission to state therein a material fact required to testify in connection therewith be stated therein or shall be required necessary to respond make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to procedures designed any Underwriter furnished to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceedingUnderwriter through you expressly for use therein; provided, however however, that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The foregoing indemnity and contribution obligations of the Company shall be in addition agreement with respect to any liability which the Company may otherwise have, preliminary prospectus shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure inure to the benefit of any successorsUnderwriter, assignsor any person controlling such Underwriter, heirs and personal representatives from whom the person asserting any such losses, claims, damages or liabilities purchased Shares, if a copy of the Prospectus (as then amended or supplemented if the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(fhave furnished any amendments or supplements thereto) With respect to any party who may be indemnified was not sent or given by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and or on behalf of such Underwriter to such person., if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities; provided, further,
Appears in 1 contract
Sources: Underwriting Agreement (Scient Corp)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectivelyeither Section 15 of the Securities Act or Section 20 of the Exchange Act, the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Underwriter within the directors, officers, employees, shareholders, unitholders, advisors and agents meaning of Rule 405 under the Indemnified Parties (the “Personnel”) harmless Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (if used within the period set forth in paragraph (c) of Section 7(c) hereof and as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Corporate Units, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter or any affiliate of such Underwriter within the meaning of Rule 405 of the Securities Act, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendment or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Corporate Units to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage or liability, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud Company in furnishing copies of the Indemnified Party Prospectus (or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply amendments or supplements thereto) pursuant to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelSection 7(a) hereof.
(b) If The Seller agrees to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (if used within the period set forth in paragraph (c) of Section 7 hereof and as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to the Seller Information; provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Corporate Units, or any person controlling such Underwriter or any affiliate of such Underwriter within the meaning of Rule 405 of the Securities Act, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendment or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Corporate Units to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage or liability, unless such failure is the result of noncompliance by the Company in furnishing copies of the Prospectus (or amendments or supplements thereto) pursuant to Section 7(a) hereof. The liability of the Seller under the indemnity agreement contained in this paragraph shall be limited to an amount equal to the aggregate Public Offering Price of the Corporate Units sold by the Seller under this Agreement.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Seller, the directors and officers of the Company and Seller who sign the Registration Statement and each person, if any, who controls the Company or the Seller within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Seller and all persons, if any, who controls the Seller within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by the Representatives. In the case of any such separate firm for the Company and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Seller and such control persons of the Seller, such firm shall be designated in writing by the Seller. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the foregoing prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a), 9(b) or 9(c) is unavailable to an Indemnified Party indemnified party in respect of any losses, claims, damages or its Personnel or insufficient liabilities referred to hold an Indemnified Party or its Personnel harmlessunder such paragraph, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) if the indemnifying party is the Company or the Seller in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Corporate Units, damage (ii) if the indemnifying person is an Underwriter, in such proportion as is appropriate to reflect the relative fault of such Underwriter on the one hand and the indemnified party or liability parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities or (iii) if the allocation provided by clause 9(e)(i) or 9(e)(ii) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 9(e)(i) above or the relative fault referred to in clause 9(e)(ii) but also the relative fault (in cases covered by clause 9(e)(i) or such relative benefits (in cases covered by clause 9(e)(ii)) of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company or the Seller on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Corporate Units shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Corporate Units (before deducting expenses) received by the Seller and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Corporate Units. The relative fault of the Company or the Seller on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to or the amount paid Seller or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters’ respective obligations to contribute pursuant to this Agreement.
(c) Section 9 are several in proportion to the respective number of Corporate Units they have purchased hereunder, and not joint. The Company agrees that liability of the Seller under the contribution agreement contained in case any legal proceeding this paragraph shall be brought against limited to an amount equal to the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason aggregate Public Offering Price of the performance of professional services rendered to the Company Corporate Units sold by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered Seller under this Agreement and/or the termination of this Agreement.
(f) With respect The Company, the Seller and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Corporate Units underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party who may be indemnified by at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 9 and the above indemnity is not a party to representations, warranties and other statements of the Company and the Seller contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, by or on behalf of the Seller or any person controlling the Seller, or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Corporate Units.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold harmless the UnderwritersInitial Purchaser, each person, if any, who controls the Initial Purchaser within the meaning of their subsidiaries and affiliates (collectivelyeither Section 15 of the Securities Act or Section 20 of the Exchange Act, the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of the directors, officers, employees, shareholders, unitholders, advisors and agents Initial Purchaser within the meaning of Rule 405 under the Indemnified Parties (the “Personnel”) harmless Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Memorandum (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto, or any preliminary form of the Memorandum), or caused by any omission or alleged omission to state therein a material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon information relating to the performance of professional services rendered Initial Purchaser furnished to the Company in writing by the Indemnified Party and its Personnel or otherwise in connection Initial Purchaser expressly for use therein; provided, however, that the foregoing indemnity agreement with respect to any preliminary offering memorandum shall not inure to the matters referred to in this Agreement (including benefit of the aggregate amount paid in reasonable settlement of Initial Purchaser from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Securities, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling the Initial Purchaser, if a copy of the Memorandum (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of the Initial Purchaser to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Securities to such person, and if the Memorandum (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnel.
(b) If for any reason the foregoing indemnification is unavailable to an Indemnified Party or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmless, then the Company shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received noncompliance by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault of the Company and the Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreementwith Section 6(c) hereof.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf of such person.
Appears in 1 contract
Indemnity and Contribution. (aggg) The Company shall agrees to indemnify and hold the Underwritersharmless each Initial Purchaser, each person, if any, who controls any Initial Purchaser within the meaning of their subsidiaries and affiliates (collectivelyeither Section 15 of the Securities Act or Section 20 of the Exchange Act, the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Initial Purchaser within the directors, officers, employees, shareholders, unitholders, advisors and agents meaning of Rule 405 under the Indemnified Parties (the “Personnel”) harmless Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, liabilities without limitation, any legal or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Company by the Indemnified Party and its Personnel or otherwise other expenses reasonably incurred in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of defending or investigating any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened claim) caused by any untrue statement or brought against an Indemnified Party and/or its Personnel.
alleged untrue statement of a material fact contained in either Memorandum (b) If for any reason the foregoing indemnification is unavailable to an Indemnified Party as amended or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmless, then supplemented if the Company shall contribute have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact necessary to make the amount paid or payable by an Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability statements therein in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault light of the Company and the Indemnified Party and/or its Personnelcircumstances under which they were made not misleading, except (i) insofar as well as any relevant equitable considerations; provided that the Company shallsuch losses, in any eventclaims, contribute to the amount paid damages or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel liabilities are caused by any governmental commission such untrue statement or regulatory authority omission or alleged untrue statement or omission based upon information relating to any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required Initial Purchaser furnished to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing by such Initial Purchaser through any of you expressly for use therein and (ii) insofar as the sale to the person asserting any such losses, claims, damages or liabilities was an initial resale by such Initial Purchaser and any such losses, claims, damages or liabilities of or with respect to such Initial Purchaser results from the fact that both (A) to the extent required by applicable law, the Company has sustained the burden of proving that a copy of the commencement thereof andFinal Memorandum was not sent or given to such person at or prior to the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from the Preliminary Memorandum was corrected in the Final Memorandum unless, throughout in either case, such failure to deliver the course thereof, will Final Memorandum was a result of the Company's failure to provide copies of all relevant documentation the corrected Final Memorandum to such Initial Purchaser prior to the Company, will keep the Company advised written confirmation of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf sale of such personSecurities.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties (the “Personnel”) harmless Exchange Act, from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein and except that such indemnity agreement shall not inure to the Indemnified Party and its Personnel or otherwise in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is Underwriter from whom the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of person asserting any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnel.
(b) If for any reason the foregoing indemnification is unavailable to an Indemnified Party or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmless, then the Company shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability in purchased Shares, or any person controlling such proportion Underwriter, if the Prospectus (as is appropriate to reflect not only the relative benefits received by then amended or supplemented, if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault written confirmation of the Company sale of the Shares to such person, and if the Indemnified Party and/or its Personnel, Prospectus (as well as any relevant equitable considerations; provided that so amended or supplemented) would have cured the Company shall, in any event, contribute defect giving rise to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf of such person.
Appears in 1 contract
Sources: Underwriting Agreement (American Superconductor Corp /De/)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwriters, each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) harmless ▇▇▇▇▇▇▇ ▇▇▇▇▇ and each person, if any, who controls ▇▇▇▇▇▇▇ ▇▇▇▇▇ within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties (the “Personnel”) harmless Exchange Act, from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to ▇▇▇▇▇▇▇ ▇▇▇▇▇ furnished to the Company in writing by you expressly for use therein; provided, however, that the Indemnified Party foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of ▇▇▇▇▇▇▇ ▇▇▇▇▇ , or any person controlling ▇▇▇▇▇▇▇ ▇▇▇▇▇, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the person asserting any losses, claims, damages or liabilities, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and its Personnel if the Prospectus (as so amended or otherwise in connection with supplemented) would have cured the matters referred defect giving rise to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actionslosses, suitsclaims, investigations, proceedings damages or claims that may be made against an Indemnified Party and/or its Personnel)liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 6(a) hereof.
(b) If ▇▇▇▇▇▇▇ ▇▇▇▇▇ agrees to indemnify and hold harmless the Company, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to ▇▇▇▇▇▇▇ ▇▇▇▇▇ furnished to the Company in writing by you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a) or 9(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for ▇▇▇▇▇▇▇ ▇▇▇▇▇ and all persons, if any, who control ▇▇▇▇▇▇▇ ▇▇▇▇▇ within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for ▇▇▇▇▇▇▇ ▇▇▇▇▇ and such control persons of ▇▇▇▇▇▇▇ ▇▇▇▇▇, such firm shall be designated in writing by ▇▇▇▇▇▇▇ ▇▇▇▇▇. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the sale of the Shares or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel ▇▇▇▇▇▇▇ ▇▇▇▇▇ on the other hand but also in connection with the sale of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the sale of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by ▇▇▇▇▇▇▇ ▇▇▇▇▇, in each case as described on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company on the one hand and ▇▇▇▇▇▇▇ ▇▇▇▇▇ on the Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding other hand shall be brought against determined by reference to, among other things, whether the Company and/or an Indemnified Party and/or its Personnel by any governmental commission untrue or regulatory authority alleged untrue statement of a material fact or any stock exchange the omission or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required alleged omission to testify in connection therewith or shall be required state a material fact relates to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid supplied by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Indemnifying Parties and/or its Personnel be entitled (but not required) parties' relative intent, knowledge, access to assume the defence of any suit brought information and opportunity to enforce correct or prevent such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counselstatement or omission.
(e) The indemnity Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ agree that it would not be just or equitable if contribution obligations pursuant to this Section 8 were determined by pro rata allocation or by any other method of allocation that does not take account of the Company equitable considerations referred to in Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in addition connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall not be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreementindemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such person▇▇▇▇▇▇▇ ▇▇▇▇▇ or any person controlling ▇▇▇▇▇▇▇ ▇▇▇▇▇, or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Sources: Underwriting Agreement (Renaissancere Holdings LTD)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Selling Shareholder and each person, if any, who controls any Underwriter, or any Selling Shareholder within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “Personnel”) harmless "EXCHANGE ACT"), from and against any and all expenses, losses (other than loss of profits), feeslosses, claims, actions damages and liabilities (including shareholder actionsincluding, derivative actions without limitation, any legal or otherwiseother expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), damagesor caused by any
(b) The Company agrees to indemnify and hold harmless ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and each person, obligations if any, who controls ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ within the meaning of either Section 15 of the Securities Act or liabilitiesSection 20 of the Exchange Act ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ENTITIES"), whether joint or several, from and the reasonable fees against any and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, all losses, claims, damages, and liabilities (including, without limitation, any legal or actions arise out other expenses reasonably incurred in connection with defending or investigating any such action of or are based, directly or indirectly, upon the performance of professional services rendered to the Company claim) (i) caused by the Indemnified Party failure of any Participant to pay for and its Personnel accept delivery of the shares which, immediately following the effectiveness of the Registration Statement, were subject to a properly confirmed agreement to purchase; or otherwise (ii) related to, arising out of, or in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actionsDirected Share Program, suitsprovided that, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnel.
(b) If for any reason the foregoing indemnification is unavailable to an Indemnified Party or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmless, then the Company shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel as a result of such expense, lossnot be responsible under this subparagraph (ii) for any losses, claim, damage damages or liability in such proportion as is appropriate liabilities (or expenses relating thereto) that are finally judicially determined to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault of the Company and the Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.have
(c) The Each Selling Shareholder agrees, severally and not jointly, to indemnify and hold harmless each Underwriter, the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls any Underwriter or the Company agrees that within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent such losses, claims, damages or liabilities are based upon any untrue statement or omission or alleged untrue statement or omission based upon information relating to such Selling Shareholder furnished in writing by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto. Notwithstanding anything contained herein to the contrary, no Selling Shareholder shall be liable under this Section 9 for any amount in excess of the total proceeds (before deducting expenses) received by such Selling Shareholder from the Underwriters for the Shares sold by such Selling Shareholder hereunder.
(d) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Shareholders, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or any Selling Shareholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent such losses, claims, damages or liabilities are based upon any untrue statement or omission or alleged
(e) In case any legal proceeding (including any governmental investigation) shall be brought instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a), 9(b), 9(c) or 9(d), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority"INDEMNIFYING PARTY") in writing and the indemnifying party, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason upon request of the performance of professional services rendered indemnified party, shall retain counsel reasonably satisfactory to the Company by indemnified party to represent the Indemnified Party and/or its Personnelindemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, the Indemnified Party any indemnified party shall have the right to employ retain its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and but the fees and expenses of such counsel as well as shall be at the costs expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including an amount to reimburse any impleaded parties) include both the Indemnified Party for time spent by it indemnifying party and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result indemnified party and representation of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred both parties by the Indemnified Party same counsel would be inappropriate due to actual or its Personnel in connection therewith potential differing interests between them. It is understood that the indemnifying party shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigationnot, which is based, directly or indirectly, upon any matter in respect of which indemnification the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Selling Shareholders and all persons, if any, who control any Selling Shareholder within the meaning of either such Section, and that all such reasonable fees and expenses shall be reimbursed as they are incurred. Notwithstanding anything contained herein to the contrary, if indemnity may be sought from pursuant to Section 9(b) hereof in respect of such action or proceeding, then in addition to such separate firm for the Companyindemnified parties, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel indemnifying party shall be liable for any settlement the reasonable fees and expenses of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own more than one separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
firm (e) The indemnity and contribution obligations of the Company shall be in addition to any liability which local counsel) for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ for the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit defense of any successorslosses, assignsclaims, heirs damages and personal representatives liabilities arising out of the Company Directed Share Program, and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party all persons, if any, who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf of such person.control ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Initial Purchaser, each person, if any, who controls any Initial Purchaser within the meaning of their subsidiaries and affiliates (collectivelyeither Section 15 of the Securities Act or Section 20 of the Exchange Act, the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Initial Purchaser within the directors, officers, employees, shareholders, unitholders, advisors and agents meaning of Rule 405 under the Indemnified Parties (the “Personnel”) harmless Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in either Memorandum (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Initial Purchaser furnished to the Company in writing by such Initial Purchaser through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection with the matters referred to indemnification contained in this Agreement paragraph (including a) with respect to the aggregate amount paid in reasonable settlement Preliminary Memorandum shall not inure to the benefit of the Initial Purchasers (or to the benefit of any person controlling the Initial Purchasers) on account of any such actionsloss, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, actiondamage, suit, investigation liability or proceeding has been caused solely by or is expense arising from the result sale of the gross negligenceSecurities by the Initial Purchasers to any person if the untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in the Preliminary Memorandum was corrected in the Final Memorandum and the Initial Purchasers sold Securities to that person without sending or giving to such person at or prior to the written confirmation of such sale, wilful misconduct or fraud a copy of the Indemnified Party or Final Memorandum.
(a) Each Initial Purchaser agrees, severally and not jointly, to indemnify and hold harmless the Company, its Personnel. Without limiting directors, its officers and each person, if any, who controls the generality Company within the meaning of either Section 15 of the foregoingSecurities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Initial Purchaser, this indemnity shall apply but only with reference to all expenses (including reasonable legal expenses), losses, claims and liabilities that information relating to such Initial Purchaser furnished to the Indemnified Parties and/or their Personnel may incur as a result of Company in writing by such Initial Purchaser through you expressly for use in either Memorandum or any action amendments or litigation that may be threatened or brought against an Indemnified Party and/or its Personnelsupplements thereto.
(b) If In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the indemnifying party shall have failed to assume the defense and employ counsel or (iii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by Morgan Stanley & Co. Incorporated, in the case of parties indemnified ▇▇▇▇▇▇n▇ ▇▇ ▇▇ction 8(a), and by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(c) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Initial Purchasers on the other hand from the offering of the Securities or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative fault of the Company on the one hand and of the Initial Purchasers on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Initial Purchasers on the other hand but also in connection with the offering of the Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Securities (before deducting expenses) received by the Company and the total discounts and commissions received by the Initial Purchasers, in each case as set forth in the Final Memorandum, bear to the aggregate offering price of the Securities. The relative fault of the Company on the one hand and of the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Initial Purchasers and the Indemnified Party and/or its Personnelparties' relative intent, as well as any relevant equitable considerations; provided that the Company shallknowledge, access to information and opportunity to correct or prevent such statement or omission. The Initial Purchasers' respective obligations to contribute pursuant to this Section 8 are several in any event, contribute proportion to the respective principal amount of Securities they have purchased hereunder, and not joint.
(d) The Company and the Initial Purchasers agree that it would not be just or equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(d). The amount paid or payable by the Indemnified Party and/or its Personnel an indemnified party as a result of such expensethe losses, lossclaims, claimdamages and liabilities referred to in Section 8(d) shall be deemed to include, damage or liabilitysubject to the limitations set forth above, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify expenses reasonably incurred by such indemnified party in connection therewith with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, no Initial Purchaser shall be required to respond contribute any amount in excess of the amount by which the total price at which the Securities resold by it in the initial placement of such Securities were offered to procedures designed investors exceeds the amount of any damages that such Initial Purchaser has otherwise been required to discover information regarding, in connection with, or pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the performance meaning of professional services rendered Section 11(f) of the Securities Act) shall be entitled to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses contribution from any person who was not guilty of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnelfraudulent misrepresentation. The Company remedies provided for in this Section 8 are not exclusive and shall on behalf of itself and the Indemnifying Parties and/or its Personnel not limit any rights or remedies which may otherwise be entitled (but not required) available to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented indemnified party at law or in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counselequity.
(e) The indemnity and contribution obligations provisions contained in this Section 8 and the representations, warranties and other statements of the Company shall be contained in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement shall remain operative and shall be binding upon in full force and enure to the benefit effect regardless of (i) any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
, (fii) With respect to any party who may be indemnified investigation made by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and or on behalf of such personany Initial Purchaser, any person controlling any Initial Purchaser or any affiliate of any Initial Purchaser or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Securities.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall indemnify and hold
6.1 For each Series without prejudice to any other rights or remedies available to the Underwriters, each Dealer of their subsidiaries and affiliates (collectivelysuch Series, the “Indemnified Parties” and individually, an “Indemnified Party”) and Issuer agrees to indemnify each of the directorsIndemnified Persons against all losses, officersliabilities, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), feescosts, claims, actions (including shareholder actionscharges, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claimsexpenses, actions, suitsproceedings and demands (including, investigations but not limited to, all costs, charges and expenses on a full indemnity basis paid or proceedings to incurred in disputing or defending the same) which any such Indemnified Party and/or its Personnel Person may become subject reasonably incur or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damages, liabilities or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Company by the Indemnified Party and its Personnel or otherwise in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actions, suits, investigations, proceedings or claims that which may be made against an such Indemnified Party and/or Person arising out of or in relation to:
6.1.1 any failure by the Issuer to issue on the agreed Issue Date any Notes which a Dealer has agreed to subscribe for or any failure by the Issuer to perform its Personnel), unless such respective obligations under any of the Transaction Documents to which it is a party; or
6.1.2 any actual or threatened claim, action, suit, investigation or proceeding has been caused solely alleged (except in the case of an allegation made by or is any person seeking the result benefit of such indemnity) breach by the Issuer of the gross negligencerepresentations, wilful misconduct warranties and undertakings contained in, or fraud made or deemed to be made pursuant to, this Agreement or any untrue statement or alleged untrue statement contained in the Registration Document, any Securities Note, any relevant Applicable Supplement and any amendments or supplements thereto circulated or distributed with the consent of the Indemnified Party Issuer or its Personnel. Without limiting any omission or alleged omission to state therein a material fact necessary to make the generality statements therein, in light of the foregoingcircumstances under which they were made, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result not misleading; or
6.1.3 any disclosure of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnel.
(b) If for any reason the foregoing indemnification is unavailable to an Indemnified Party or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmless, then the Company shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received information agreed by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault of the Company and the Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided that the Company shall, in any event, contribute Issuer to the amount paid or payable be disclosed by the Indemnified Party and/or its Personnel as a result Dealer under Clause 7 of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
6.2 In relation to any Series, if any proceeding (c) The Company agrees that in case any legal proceeding including governmental investigation), action, claim or demand shall be brought or alleged against the Company and/or an any Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify Person in connection therewith or shall respect of which indemnity may be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnelsought under this Clause, the Indemnified Party relevant Dealer shall promptly notify the Issuer in writing, and the Issuer shall have the right option to employ its own counsel in connection therewith, provided assume the Indemnifying Party acts reasonably in selecting such counseldefence thereof, and to retain lawyers to whom such Dealer shall raise no reasonable objection within a reasonable period of notice of that appointment, in which case the Issuer shall be liable to pay the fees and expenses of such counsel as well as lawyers relating to such proceedings.
6.3 In any such proceedings, the costs (including an amount relevant Dealer shall have the right to reimburse retain its own lawyers, but the Indemnified Party for time spent by it fees and its Personnel in connection therewith) expenses of such lawyers shall be at their per diem rates unless such proceeding has been caused solely by or is the result expense of the gross negligence Dealer unless:
6.3.1 the Issuer and the relevant Dealer have mutually agreed to the retention of such lawyers; and
6.3.2 the relevant Dealer has defences additional to or fraud different from the Issuer; or
6.3.3 the Issuer has failed to employ lawyers satisfactory to the relevant Dealer within a reasonable period of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred time after notice by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice relevant Dealer of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of such proceedings, in which case the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence Issuer shall be conducted through liable to pay the fees and expenses of such lawyers.
6.4 Subject as set out in Clause 6.3 above, in no event shall the Issuer be liable for the fees and expenses of more than one legal counsel acceptable adviser or group of legal advisers to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of Persons in connection with any such legal proceeding may be made by one action or separate but similar or related actions in the Company without the prior written consent same jurisdiction arising out of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel same general allegations or circumstances.
6.5 The Issuer shall not be liable to indemnify any Indemnified Person for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such effected without the authority and written consent of the Issuer (which shall not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counselwithheld or delayed).
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf of such person.
Appears in 1 contract
Sources: Amendment and Restatement Agreement
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold harmless each Underwriter (including, for this purpose, any affiliated broker-dealer of an Underwriter participating as an initial seller in the Underwriters, each offering of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”Underwritten Securities) and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents 1933 Act or Section 20 of the Indemnified Parties (the “Personnel”) harmless 1934 Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, liabilities without limitation, any legal or actions arise out other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or are basedany amendment thereof, directly including the Rule 430B Information, or indirectlyin the General Disclosure Package, upon the performance of professional services rendered to any preliminary prospectus, any Issuer Free Writing Prospectus, any written or graphic road show materials or investor presentation materials used by the Company by the Indemnified Party and its Personnel or otherwise in connection with the matters referred offering of the Underwritten Securities not otherwise constituting an Issuer Free Writing Prospectus (a “non-IFWP road show”), or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein (with respect to any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus only, in this Agreement (including the aggregate amount paid in reasonable settlement light of the circumstances under which they were made) or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such actions, suits, investigations, proceedings untrue statement or claims that may be made against an Indemnified Party and/or its Personnel), unless omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelUnderwriter through you expressly for use therein.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, including the Rule 430B Information, or in the General Disclosure Package, any preliminary prospectus, any Issuer Free Writing Prospectus, any non-IFWP road show, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 6(a) or 6(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party shall be entitled to retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the indemnifying party does not promptly retain counsel reasonably satisfactory to the indemnified party or (iii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party reasonably concludes that the representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC and ▇▇▇▇▇ Fargo Securities, LLC, in the case of parties indemnified pursuant to Section 6(a) hereof, and by the Company, in the case of parties indemnified pursuant to Section 6(b) hereof. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement; provided that an indemnifying party shall not be liable for any such settlement effected without its consent if such indemnifying party (x) reimburses such indemnified party in accordance with such request to the extent that the indemnifying party in its judgment considers such request to be reasonable and (y) provides written notice to the indemnified party stating the reason it deems the unpaid balance unreasonable, in each case no later than 45 days after receipt by such indemnifying party of the aforesaid request from the indemnified party. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless (i) such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) To the extent the indemnification provided for in Section 6(a) or 6(b) hereof is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Underwritten Securities or (ii) if the allocation provided by clause 6(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 6(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Underwritten Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Underwritten Securities (before deducting expenses) received by the Company and the total underwriting discount received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate public offering price of the Underwritten Securities. The relative fault of the Company on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters’ respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 6 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by respective number of Underwritten Securities they have purchased under the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselapplicable Terms Agreement, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelUnderwriters agree that it would not be just or equitable if contribution pursuant to this Section 6 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 6(d) hereof. The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 6, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Underwritten Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The 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) With respect to The indemnity and contribution provisions contained in this Section 6 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter or any person controlling any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Underwritten Securities.
Appears in 1 contract
Indemnity and Contribution. Each of the Company, together with its subsidiaries or affiliated companies, as the case may be, and Yamana (aeach, an “Indemnitor”) The Company shall hereby agrees to indemnify and hold the Underwriters, each of their subsidiaries and affiliates (collectivelyaffiliates, the “Indemnified Parties” and individually, an “Indemnified Party”) and each of the their directors, officers, employees, shareholders, unitholders, advisors unitholders and agents of the Indemnified Parties (hereinafter referred to as the “Personnel” and collectively with the Underwriters, each of their subsidiaries and affiliates, the “Indemnified Parties”) harmless from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations obligations, or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings (collectively, “Claims” and each individually a “Claim”) to which any Indemnified Party and/or its Personnel Parties may become subject or otherwise involved in any capacity under any statute or common law law, or otherwise, otherwise insofar as such expenses, losses, claims, damages, liabilities or actions Claims arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Company Indemnitor by the Indemnified Party and its Personnel Parties hereunder, or otherwise in connection with the matters referred to in this Agreement Offering (including the aggregate amount paid in reasonable settlement of any such actions, suits, investigations, proceedings or claims Claims that may be made against an the Indemnified Party and/or its PersonnelParties), unless such actual or threatened claim, action, suit, investigation Claim is determined by a court of competent jurisdiction from which no appeal can be made or proceeding has by a regulatory authority in a final ruling from which no appeal can be made to have been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its PersonnelParties, all in according with the provisions set out in this indemnity. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities Claims that the Indemnified Parties Underwriters and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party the Underwriters and/or its Personnel.
(b) If for any reason the foregoing indemnification is unavailable to an Indemnified Party or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmless, then the Company shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault of the Company and the Indemnified Party and/or its their Personnel, as well as any relevant equitable considerations; provided that in accordance with the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result terms of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) Schedule “A”. The Company agrees that in case any legal proceeding together with its subsidiaries or affiliated companies shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, hold harmless and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud indemnify each of the Indemnified Party (Parties from and against all Claims, insofar as the Claims relate to, are caused by, result from, arise out of or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is basedare based upon, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf of such person.:
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter and each Selling Stockholder, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectively, either Section 15 of the “Indemnified Parties” and individually, an “Indemnified Party”) Securities Act or Section 20 of the Exchange Act and each director, officer and affiliate of any Underwriter or Selling Stockholder within the directors, officers, employees, shareholders, unitholders, advisors and agents meaning of Rule 405 under the Indemnified Parties (the “Personnel”) harmless Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained or incorporated by reference in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, or the Prospectus or any amendment or supplement thereto, caused by, (i) in the case of any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, or any road show or Testing-the-Waters Communication, any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (ii) in the case of the Registration Statement or any amendment thereof, 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 each case except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out omission or alleged untrue statement or omission based upon (A) in respect of or are basedthe indemnity in favor of the Underwriters, directly or indirectly, upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by or on behalf of such Underwriter or through you expressly for use therein or (B) in respect of the Indemnified Party indemnity in favor of the Selling Stockholders, information relating to such Selling Stockholder furnished in writing by or on behalf of such Selling Stockholder expressly for use therein.
(a) Each Selling Stockholder agrees, severally and its Personnel not jointly, to indemnify and hold harmless the Underwriters, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or otherwise Section 20 of the Exchange Act and each director, officer and affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) that arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained or incorporated by reference in the matters referred Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any road show or Testing-the-Waters Communication, the Prospectus or any amendment or supplement thereto, or arise out of, or are based upon, any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that each Selling Stockholder shall be liable only to the extent any of the foregoing is in reliance upon and in conformity with the Selling Stockholder Information; provided, further, that the liability under this Agreement (including subsection of each Selling Stockholder shall be limited to an amount equal to the aggregate amount paid in reasonable settlement gross proceeds after underwriting commissions and discounts, but before expenses, to such Selling Stockholder from the sale of any Shares sold by such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelSelling Stockholder hereunder.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Stockholders, the Company’s directors, its officers who sign the Registration Statement and each person, if any, who controls the Company or any Selling Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by or on behalf of such Underwriter or through you expressly for use therein, it being understood and agreed upon that the only such information furnished consists of the following information in the Prospectus: the first to fourth and sixth paragraphs and the second sentence of the fifth paragraph, in the section titled “Underwriters—Stabilization.”
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 11(a), 11(b) or 11(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (iii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by the Underwriters. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Stockholders and such controls persons of the Selling Stockholders, such firm shall be designated in writing by the Selling Stockholders. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the foregoing prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes (i) an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) To the extent the indemnification provided for in Section 11(a), 11(b) or 11(c) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein (other than as a result of the limitation on indemnification provided for therein), then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties, damage on the one hand, and the indemnified party or liability parties, on the other hand, from the offering of the Shares or (ii) if the allocation provided by clause 11(e)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 11(e)(i) above but also the relative fault of the Company indemnifying party or parties, on the one hand, and of the Indemnified Party and/or its Personnelindemnified party or parties, on the other hand, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees . The relative benefits received by the Indemnified Party Selling Stockholders, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by each Selling Stockholder and the total underwriting discounts and commissions received by the Underwriters bear to the aggregate Purchase Price of the Shares. The relative fault of the Company and the Selling Stockholders, on the one hand, and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Selling Stockholders or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 11 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Shares they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The Company, the Selling Stockholders and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 11 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 11(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 11(e) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 11, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares that were underwritten by it were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 11 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 obligations of provisions contained in this Section 11 and the Company shall be in addition to any liability which the Company may otherwise haverepresentations, shall extend upon the same terms warranties and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives other statements of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under Selling Stockholders contained in this Agreement and/or and the agreements regarding expense reimbursement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement.
, (fii) With respect to any party who may be indemnified investigation made by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and or on behalf of such personany Underwriter, any person controlling any Underwriter or any director, officer or affiliate of any Underwriter, or by or on behalf of the Selling Stockholder or any person controlling the Selling Stockholder, or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (collectivelythe "EXCHANGE ACT"), the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Underwriter within the directorsmeaning of Rule 405 under the Securities Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel foregoing indemnity agreement with respect to any untrue statement contained in or otherwise in connection with omission from a preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 6(a) hereof.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus, or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed in writing to the retention of such counsel and that such fees and expenses of such counsel shall be paid by the indemnifying party, or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party shall have been advised by such counsel that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed on a monthly basis as they are incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, in the case of parties indemnified pursuant to Section 7(a), and by the Company, in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the foregoing prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 7(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 7(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 7 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Shares they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelUnderwriters agree that it would not be just or equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 7(d). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 7 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company, and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Sources: Underwriting Agreement (Ipass Inc)
Indemnity and Contribution. (a) The Each of the Company shall and the Management Selling Shareholders, severally and not jointly, agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectively, either Section 15 of the “Indemnified Parties” and individually, an “Indemnified Party”) Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the directorsmeaning of Rule 405 under the Securities Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or the Form 8-K filed by the Company with the Commission on November 4, 2004 (including the exhibit furnished therewith), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims any person controlling such Underwriter, if it is established that may be made against an Indemnified Party and/or its Personnel), unless such actual a copy of the Prospectus (as then amended or threatened claim, action, suit, investigation supplemented if the Company shall have furnished any amendments or proceeding has been caused solely supplements thereto) was not sent or given by or is on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the result written confirmation of the gross negligence, wilful misconduct or fraud sale of the Indemnified Party Shares to such person, and if the Prospectus (as so amended or its Personnel. Without limiting supplemented) would have cured the generality of the foregoing, this indemnity shall apply defect giving rise to all expenses (including reasonable legal expenses), such losses, claims claims, damages or liabilities; and liabilities provided, further, that the Indemnified Parties and/or their Personnel may incur as a result liability of any action or litigation that may each Management Selling Shareholder under such Management Selling Shareholder’s representations and warranties contained in Sections 2(b)(vi)(A) and 2(b)(vii) hereof and under this paragraph (a) shall be threatened or brought against limited to an Indemnified Party and/or its Personnelamount equal to the net proceeds received by such Management Selling Shareholder from the sale of such Management Selling Shareholder’s Shares.
(b) If Each of SPEI and the Non-Management Selling Shareholders, severally and not jointly, agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating specifically to such Selling Shareholder, as set forth under the caption “Principal and Selling Stockholders” (including the notes thereto); provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting such losses, claims, damages or liabilities purchased Shares, or any person controlling such Underwriter, if it is established that a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities; and provided, further, that with respect to any amount due an indemnified person under this paragraph (b), each Selling Shareholder shall be liable only to the extent of the net proceeds received by the Selling Shareholder from the sale of such Selling Shareholder’s Shares.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Shareholders, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or any Selling Shareholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (A) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (B) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section; (C) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Selling Shareholders (other than SPEI) and all persons, if any, who control any such Selling Shareholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred; and (D) the fees and expenses of more than one separate firm (in addition to any local counsel) for SPEI and all persons who control SPEI within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Shareholders (other than SPEI) and such control persons of such Selling Shareholders, such firm shall be designated in writing by the persons named as attorneys in fact for such Selling Shareholders under the Powers of Attorney. In the case of any such separate firm for SPEI and such control persons of SPEI, such firm shall be designated in writing by SPEI. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (1) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (2) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a), 9(b) or 9(c) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 9(e)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 9(e)(i) above but also the relative fault of the Company indemnifying party or parties on the one hand and of the Indemnified Party and/or its Personnelindemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that . The relative benefits received by the Company shallSellers on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by each Seller and the total underwriting discounts and commissions received by the Underwriters, in any eventeach case as set forth in the table on the cover of the Prospectus, contribute bear to the aggregate Public Offering Price of the Shares. The relative fault of the Sellers on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Sellers or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 9 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. In no event shall the liability of any Selling Shareholder under this Section 9(e) exceed the amount that such Selling Shareholder would have been required to pay under Section 9(b) had such indemnification been held to be available thereunder.
(f) The Sellers and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(e). The amount paid or payable by the Indemnified Party and/or its Personnel an indemnified party as a result of such expensethe losses, lossclaims, claimdamages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, damage or liabilitysubject to the limitations set forth above, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify expenses reasonably incurred by such indemnified party in connection therewith with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, no Underwriter shall be required to respond contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to procedures designed the public were offered to discover information regarding, in connection with, or the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the performance meaning of professional services rendered Section 11(f) of the Securities Act) shall be entitled to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses contribution from any person who was not guilty of such counsel as well as fraudulent misrepresentation. The remedies provided for in this Section 9 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. The provisions of this Section 9 shall not supersede or otherwise affect any agreement that the costs (including an amount Sellers may otherwise have with respect to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occurindemnification between them.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(eg) The indemnity and contribution obligations of provisions contained in this Section 9 and the Company shall be in addition to any liability which the Company may otherwise haverepresentations, shall extend upon the same terms warranties and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives other statements of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under Selling Shareholders contained in this Agreement and/or the shall remain operative and in full force and effect regardless of (i) any termination of this Agreement.
, (fii) With respect to any party who may be indemnified investigation made by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, any Selling Shareholder or any person controlling any Selling Shareholder, or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Sources: Underwriting Agreement (Wellcare Health Plans, Inc.)
Indemnity and Contribution. (a) The Company shall agrees to indemnify -------------------------- and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “Personnel”) harmless "Exchange Act"), or is under common control with, or is controlled by, such Underwriter, from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred by any Underwriter or any such controlling or affiliated person in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of the Prospectus and any amendment or supplement thereto, in the light of the circumstances under which they were made), except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection foregoing -------- ------- indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter (or any other person indemnified pursuant to this paragraph (a)) to the extent that any such actionslosses, suitsclaims, investigationsdamages or liabilities result from the fact that such Underwriter sold securities to a person to whom there was not sent or given by or on behalf of such Underwriter (if required by law so to have been delivered) a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) at or prior to the written confirmation of the sale of the Shares to such person, proceedings and if the losses, claims, damages or claims liabilities result from an untrue statement or alleged untrue statement or an omission or alleged omission contained in such preliminary prospectus that may be made against an Indemnified Party and/or its Personnelwas corrected in the Prospectus (as so amended or supplemented), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 6(a) hereof.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to paragraph (a) or (b) of this Section 7, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in the case of parties indemnified pursuant to paragraph (a) of this Section 7 and by the Company in the case of parties indemnified pursuant to paragraph (b) of this Section 7. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or (b) of this Section 7 is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient to hold an Indemnified Party in respect of any losses, claims, damages or its Personnel harmlessliabilities, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, damage or liability 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 Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 7 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Shares they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelUnderwriters agree that it would not be just or equitable if contribution pursuant to this Section 7 were determined by pro --- rata allocation (even if the Underwriters were treated as one entity for such ---- purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 7 and the representations and warranties of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter or any person controlling any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) and each either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “PersonnelExchange Act”) harmless ), and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act, from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing, including by email, by such Underwriter (or on behalf of such Underwriter by counsel or through you) expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 6(a) hereof.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing, including by email, by such Underwriter (or on behalf of such Underwriter by counsel or through you) expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by Deutsche Bank Securities, in the case of parties indemnified pursuant to Section 7(a), and by the Company, in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement (other than reimbursement for fees and expenses that the indemnifying party is contesting in good faith). No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 7(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 7(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters’ respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 7 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Shares they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelUnderwriters agree that it would not be just or equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 7(d). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 7 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall Each of the Fund and the Investment Advisers, jointly and severally, agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectivelyeither Section 15 of the Securities Act or Section 20 of the Exchange Act, the “Indemnified Parties” and individually, an “Indemnified Party”) each agent of any Underwriter and each director, officer or affiliate of any Underwriter within the directors, officers, employees, shareholders, unitholders, advisors and agents meaning of Rule 405 under the Indemnified Parties (the “Personnel”) harmless Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim), (i) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any Omitting Prospectus, any preliminary prospectus (including any statement of additional information incorporated by reference therein), the Time of Sale Prospectus, or the Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any Omitting Prospectus, any preliminary prospectus (including any statement of additional information incorporated by reference therein), the Time of Sale Prospectus, or the Prospectus or any amendment or supplement thereto in the light of the circumstances under which they were made) not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company Fund or the Investment Advisers in writing by such Underwriter through you expressly for use therein, it being understood and agreed that the only such information furnished by the Indemnified Party and its Personnel Underwriters through you consists of the information described as such in paragraph (b) below, or otherwise (ii) resulting from, related to or arising in connection with the matters referred to in this Agreement posting of any Omitting Prospectus, any preliminary prospectus (including the aggregate amount paid in reasonable settlement any statement of any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personneladditional information incorporated by reference therein), unless such actual the Time of Sale Prospectus, or threatened claim, action, suit, investigation the Prospectus or proceeding has been caused solely by any amendment or is supplement thereto on the result website of the gross negligenceFund, wilful misconduct the Investment Advisers or fraud of the Indemnified Party or its Personnel. Without limiting the generality any affiliate of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims . The Underwriters acknowledge and liabilities agree that the Indemnified Parties and/or their Personnel may incur as a result Fund’s indemnity and contribution obligations under this Section 9 are subject to the provisions of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelSection 17 of the Investment Company Act.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless each of the Fund and the Investment Advisers, their respective trustees, directors and officers and each person, if any, who controls the Fund or any Investment Adviser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim), caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any Omitting Prospectus, any preliminary prospectus (including any statement of additional information incorporated by reference therein), the Time of Sale Prospectus, or the Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any Omitting Prospectus, any preliminary prospectus (including any statement of additional information incorporated by reference therein), the Time of Sale Prospectus, or the Prospectus or any amendment or supplement thereto in the light of the circumstances under which they were made) not misleading, but only with reference to information relating to such Underwriter furnished to the Fund or the Investment Advisers in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus (including any statement of additional information incorporated by reference therein), the Time of Sale Prospectus, any Omitting Prospectus or the Prospectus or any amendments or supplements thereto, it being understood and agreed that the only such information furnished by the Underwriters through you consists of the chart under the first paragraph, the first sentence of the second paragraph, the third paragraph, the eighth paragraph, the first sentence of the ninth paragraph, the thirteenth paragraph, the fourteenth paragraph, the sixteenth paragraph and the twenty-second paragraph in the “Underwriters” section of the Time of Sale Prospectus and Prospectus.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a) or 9(b), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonably incurred fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, all persons who are agents of any Underwriter or all persons who are directors, officers and affiliates of any Underwriters within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Fund, its trustees, its officers and each person, if any, who controls the Fund within the meaning of either such Section, and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Investment Advisers, their officers, directors, and each person, if any, who controls any of the Investment Advisers within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons, agents, directors, officers and affiliates of any Underwriters, such firm shall be designated in writing by the Representatives. In the case of any such separate firm for the Fund, and such trustees, officers and control persons of the Fund, such firm shall be designated in writing by the Fund. In the case of any such separate firm for the Investment Advisers, and such directors, officers and control persons of the Investment Advisers, such firm shall be designated in writing by the Manager. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) To the extent the indemnification provided for in Section 9(a) or 9(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Fund and the Investment Advisers on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by Section 9(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in Section 9(d)(i) above but also the relative fault of the Company Fund and the Indemnified Party and/or its PersonnelInvestment Advisers on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that . The relative benefits received by the Company shall, Fund and the Investment Advisers on the one hand and the Underwriters on the other hand in any event, contribute connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Fund and the total Underwriter Compensation received by the Underwriters bear to the amount paid aggregate Public Offering Price of the Shares. The relative fault of the Fund and the Investment Advisers on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Fund or any of the Investment Advisers or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 9 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. Each of the Investment Advisers agrees to pay any amounts that are payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party Fund pursuant to this Agreement.
(c) The Company agrees paragraph to the extent that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is Fund fails to make all contributions required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing Fund pursuant to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counselthis Section 9.
(e) The indemnity Fund, the Investment Advisers and the Underwriters agree that it would not be just or equitable if contribution obligations pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the Company equitable considerations referred to in Section 9(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 9(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in addition connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the Underwriter Compensation received by such Underwriter with respect to the offering of the Shares exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreementindemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 9 and the representations, warranties and other statements of the Fund and each of the Investment Advisers contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter or any agent of any Underwriter or any director, officer or affiliate of any Underwriter or by or on behalf of any of the Investment Advisers, their officers or directors or any person controlling the Investment Advisers or by or on behalf of the Fund, its officers or trustees or any person controlling the Fund and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Sources: Underwriting Agreement (PGIM Short Duration High Yield Opportunities Fund)
Indemnity and Contribution. (a) The Company shall Sellers, jointly and severally, agree to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “Personnel”) harmless "Exchange Act"), from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity -------- ------- agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, unless such actual if a copy of the Prospectus (as then amended or threatened claimsupplemented, action, suit, investigation as applicable) was not sent or proceeding has been caused solely given by or is on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the result written confirmation of the gross negligence, wilful misconduct or fraud sale of the Indemnified Party Shares to such person, and if the Prospectus (as so amended or its Personnel. Without limiting supplemented) would have cured the generality of the foregoing, this indemnity shall apply defect giving rise to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnel.
(b) If for any reason the foregoing indemnification is unavailable to an Indemnified Party or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmless, then the Company shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault of the Company and the Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess unless such failure is a result of such noncompliance by the Company of Section 7(a) hereof; and provided, further, that -------- ------- the liability of each Selling Shareholder under the foregoing indemnity agreement shall be limited to an amount over equal to the amount public offering price of the fees received Shares sold by such Selling Shareholder, less the Indemnified Party pursuant underwriting discount, as set forth on the front cover page of the Prospectus.
(b) Each Selling Shareholder agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act , from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, provided, however, that the liability of -------- ------- each Selling Shareholder under the foregoing indemnity agreement shall be limited to an amount equal to the public offering price of the Shares sold by such Selling Shareholder, less the underwriting discount, as set forth on the front cover page of the Prospectus. The provisions of this Section 9(b) shall not supercede or otherwise affect any agreement that the Company and the Selling Shareholders may have among themselves, including Section 1.10 of the Investor Rights Agreement, as to the amounts of indemnification and liability among themselves.
(c) The Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Shareholders, the directors of the Company, the officers of the Company agrees that in case who sign the Registration Statement and each person, if any, who controls the Company or any Selling Shareholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal proceeding shall be brought against or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company and/or an Indemnified Party and/or its Personnel shall have furnished any amendments or supplements thereto), or caused by any governmental commission omission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is alleged omission to state therein a material fact required to testify in connection therewith be stated therein or shall be required necessary to respond make the statements therein not misleading, but only with reference to procedures designed information relating to discover information regarding, in connection with, or by reason of the performance of professional services rendered such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Indemnified Party and/or its PersonnelRegistration Statement, any preliminary prospectus, the Indemnified Party Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a), 9(b), or 9(c), such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to employ retain its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and but the fees and expenses of such counsel as well as shall be at the costs expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including an amount to reimburse any impleaded parties) include both the Indemnified Party for time spent by it indemnifying party and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result indemnified party and representation of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred both parties by the Indemnified Party same counsel would be inappropriate due to actual or its Personnel in connection therewith potential differing interests between them. It is understood that the indemnifying party shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigationnot, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence legal expenses of any suit brought to enforce such legal proceeding; providedindemnified party in connection with any proceeding or related proceedings in the same jurisdiction, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement (i) the fees and expenses of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own more than one separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
firm (e) The indemnity and contribution obligations of the Company shall be in addition to any liability which local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company may otherwise havewithin the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Selling Shareholders and all persons, shall extend upon if any, who control any Selling Shareholder within the same terms meaning of either such Section, and conditions to the Indemnified Parties that all such fees and its Personnel who are not signatories to this Agreement and expenses shall be binding upon and enure to reimbursed as they are incurred. In the benefit case of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, such separate firm for the Underwriters and such control persons of any Underwriters, such firm shall obtain and hold the rights and benefits of this indemnity be designated in trust for and on behalf of such person.writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall and each Founder, jointly and severally, agree to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “Personnel”) harmless "EXCHANGE ACT"), from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter, or any person controlling such actionsUnderwriter, suitsfrom whom the person asserting any such losses, investigationsclaims, proceedings damages or claims that may be made against an Indemnified Party and/or its Personnel)liabilities purchased Shares, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result if a copy of the gross negligence, wilful misconduct Prospectus (as then amended or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnel.
(b) If for any reason the foregoing indemnification is unavailable to an Indemnified Party or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmless, then supplemented if the Company shall contribute have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the amount paid or payable by an Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault written confirmation of the Company sale of the Shares to such person, and if the Indemnified Party and/or its Personnel, Prospectus (as well as any relevant equitable considerations; provided that so amended or supplemented) would have cured the Company shall, in any event, contribute defect giving rise to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(cb) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authorityEach Selling Stockholder agrees, either domestic or foreignseverally and not jointly, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, indemnify and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from hold harmless the Company, its directors, its officers who sign the Indemnified Parties Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course amendment thereof, will provide copies of all relevant documentation to any preliminary prospectus or the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled Prospectus (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Selling Stockholder furnished in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified writing by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and or on behalf of such person.Selling Stockholder expressly for use in the Registration Statement, any preliminary prospectus,
Appears in 1 contract
Sources: Underwriting Agreement (Marimba Inc)
Indemnity and Contribution. (a) The Company shall Each of the Fund and the Investment Advisers, jointly and severally, agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectivelyeither Section 15 of the Securities Act or Section 20 of the Exchange Act, the “Indemnified Parties” and individually, an “Indemnified Party”) each agent of any Underwriter and each director, officer or affiliate of any Underwriter within the directors, officers, employees, shareholders, unitholders, advisors and agents meaning of Rule 405 under the Indemnified Parties (the “Personnel”) harmless Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim), (i) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any Omitting Prospectus, any preliminary prospectus (including any statement of additional information incorporated by reference therein), the Time of Sale Prospectus, or the Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any Omitting Prospectus, any preliminary prospectus (including any statement of additional information incorporated by reference therein), the Time of Sale Prospectus, or the Prospectus or any amendment or supplement thereto in the light of the circumstances under which they were made) not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company Fund or the Investment Advisers in writing by such Underwriter through you expressly for use therein, it being understood and agreed that the only such information furnished by the Indemnified Party and its Personnel Underwriters through you consists of the information described as such in paragraph (b) below, or otherwise (ii) resulting from, related to or arising in connection with the matters referred to in this Agreement posting of any Omitting Prospectus, any preliminary prospectus (including the aggregate amount paid in reasonable settlement any statement of any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personneladditional information incorporated by reference therein), unless such actual the Time of Sale Prospectus, or threatened claim, action, suit, investigation the Prospectus or proceeding has been caused solely by any amendment or is supplement thereto on the result website of the gross negligenceFund, wilful misconduct the Investment Advisers or fraud of the Indemnified Party or its Personnel. Without limiting the generality any affiliate of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims . The Underwriters acknowledge and liabilities agree that the Indemnified Parties and/or their Personnel may incur as a result Fund’s indemnity and contribution obligations under this Section 9 are subject to the provisions of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelSection 17 of the Investment Company Act.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless each of the Fund and the Investment Advisers, their respective trustees, directors and officers and each person, if any, who controls the Fund or any Investment Adviser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim), caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any Omitting Prospectus, any preliminary prospectus (including any statement of additional information incorporated by reference therein), the Time of Sale Prospectus, or the Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any Omitting Prospectus, any preliminary prospectus (including any statement of additional information incorporated by reference therein), the Time of Sale Prospectus, or the Prospectus or any amendment or supplement thereto in the light of the circumstances under which they were made) not misleading, but only with reference to information relating to such Underwriter furnished to the Fund or the Investment Advisers in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus (including any statement of additional information incorporated by reference therein), the Time of Sale Prospectus, any Omitting Prospectus or the Prospectus or any amendments or supplements thereto, it being understood and agreed that the only such information furnished by the Underwriters through you consists of [ ].
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a) or 9(b), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonably incurred fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, all persons who are agents of any Underwriter or all persons who are directors, officers and affiliates of any Underwriters within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Fund, its trustees, its officers and each person, if any, who controls the Fund within the meaning of either such Section, and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Investment Advisers, their officers, directors, and each person, if any, who controls any of the Investment Advisers within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons, agents, directors, officers and affiliates of any Underwriters, such firm shall be designated in writing by the Representatives. In the case of any such separate firm for the Fund, and such trustees, officers and control persons of the Fund, such firm shall be designated in writing by the Fund. In the case of any such separate firm for the Investment Advisers, and such directors, officers and control persons of the Investment Advisers, such firm shall be designated in writing by the Manager. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) To the extent the indemnification provided for in Section 9(a) or 9(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Fund and the Investment Advisers on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by Section 9(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in Section 9(d)(i) above but also the relative fault of the Company Fund and the Indemnified Party and/or its PersonnelInvestment Advisers on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that . The relative benefits received by the Company shall, Fund and the Investment Advisers on the one hand and the Underwriters on the other hand in any event, contribute connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Fund and the total Underwriter Compensation received by the Underwriters bear to the amount paid aggregate Public Offering Price of the Shares. The relative fault of the Fund and the Investment Advisers on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Fund or any of the Investment Advisers or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 9 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. Each of the Investment Advisers agrees to pay any amounts that are payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party Fund pursuant to this Agreement.
(c) The Company agrees paragraph to the extent that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is Fund fails to make all contributions required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing Fund pursuant to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counselthis Section 9.
(e) The indemnity Fund, the Investment Advisers and the Underwriters agree that it would not be just or equitable if contribution obligations pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the Company equitable considerations referred to in Section 9(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 9(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in addition connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the Underwriter Compensation received by such Underwriter with respect to the offering of the Shares exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreementindemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 9 and the representations, warranties and other statements of the Fund and each of the Investment Advisers contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter or any agent of any Underwriter or any director, officer or affiliate of any Underwriter or by or on behalf of any of the Investment Advisers, their officers or directors or any person controlling the Investment Advisers or by or on behalf of the Fund, its officers or trustees or any person controlling the Fund and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Sources: Underwriting Agreement (PGIM Short Duration High Yield Opportunities Fund)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) and each either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “PersonnelExchange Act”) harmless ), and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act, from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless the failure to send or give such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or Prospectus is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 7(a) hereof.
(b) If Each Selling Shareholder agrees, severally and not jointly, to indemnify and hold harmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Selling Shareholder furnished in writing by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto; provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Shares, or any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless the failure to send or give such Prospectus is the result of noncompliance by the Company with Section 7(a) hereof. The liability of each Selling Shareholder under the indemnity agreement contained in this paragraph shall be limited to an amount equal to the aggregate Public Offering Price of the Shares sold by such Selling Shareholder under this Agreement.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Shareholders, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or any Selling Shareholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Selling Shareholders and all persons, if any, who control any Selling Shareholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated. In the case of any such separate firm for the Selling Shareholders and such control persons of any Selling Shareholders, such firm shall be designated in writing by the persons named as attorneys-in-fact for the Selling Shareholders under the Powers of Attorney. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the foregoing prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a), 9(b) or 9(c) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 9(e)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 9(e)(i) above but also the relative fault of the Company indemnifying party or parties on the one hand and of the Indemnified Party and/or its Personnelindemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees . The relative benefits received by the Indemnified Party Sellers on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by each Seller and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Sellers on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Sellers or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Agreement.
(c) Section 9 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. The Company agrees that liability of each Selling Shareholder under the contribution agreement contained in case any legal proceeding this paragraph shall be brought against limited to an amount equal to the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason aggregate Public Offering Price of the performance of professional services rendered to the Company Shares sold by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered Selling Shareholder under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may The Sellers and the Underwriters agree that it would not be indemnified by the above indemnity is not a party just or equitable if contribution pursuant to this Agreement, Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall obtain and hold be deemed to include, subject to the rights and benefits limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this indemnity Section 9, no Underwriter shall be required to contribute any amount in trust for excess of the amount by which the total price at which the Shares underwritten by it and on behalf distributed to the public were offered to the public exceeds the amount of any damages that such person.Underwriter has
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectivelyeither Section 15 of the Securities Act or Section 20 of the Exchange Act, the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Underwriter within the directors, officers, employees, shareholders, unitholders, advisors and agents meaning of Rule 405 under the Indemnified Parties (the “Personnel”) harmless Securities Act selling underwritten Shares on behalf of an Underwriter from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred by any Underwriter, any such controlling person or any such Affiliate in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the ADR Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Indemnified Party and its Personnel or otherwise in connection Global Coordinator expressly for use therein, provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 6(a) hereof.
(b) If for Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any reason and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the foregoing indemnification is unavailable to an Indemnified Party Registration Statement or its Personnel any amendment thereof, any preliminary prospectus or insufficient to hold an Indemnified Party the Prospectus (as amended or its Personnel harmless, then supplemented if the Company shall contribute have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Underwriter furnished to the amount paid or payable Company in writing by an Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability Underwriter through the Global Coordinator expressly for use in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault of the Company and the Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liabilityRegistration Statement, any excess of such amount over preliminary prospectus, the amount of the fees received by the Indemnified Party pursuant to this AgreementProspectus or any amendments or supplements thereto.
(c) The Company agrees that in In case any legal proceeding (including any governmental investigation) shall be brought against the Company and/or an Indemnified Party and/or its Personnel by instituted involving any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreignperson in respect of which indemnity may be sought pursuant to Section 8(a), or 8(b), such person (the "INDEMNIFIED PARTY") shall investigate promptly notify the Company and/or person against whom such indemnity may be sought (the Indemnified Party and/or its Personnel"INDEMNIFYING PARTY") in writing and the indemnifying party, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason upon request of the performance of professional services rendered indemnified party, shall retain counsel reasonably satisfactory to the Company by indemnified party to represent the Indemnified Party and/or its Personnelindemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, the Indemnified Party any indemnified party shall have the right to employ retain its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and but the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by at the Company as they occur.
expense of such indemnified party unless (di) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of indemnifying party and the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation indemnified party shall have mutually agreed to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf retention of such person.counsel or (ii) the named parties to any
Appears in 1 contract
Sources: Underwriting Agreement (51job, Inc.)
Indemnity and Contribution. (a) The Company shall and each Selling Shareholder who is a director or officer of the Company (as designated with an asterisk "*" on Schedule I) on the date of this Agreement, jointly and severally, agree to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties (the “Personnel”) harmless Exchange Act, from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by the Indemnified Party and its Personnel or otherwise in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnel.Underwriter through you expressly for use therein;
(b) If for Each Selling Shareholder severally agrees to indemnify and hold harmless (i) each Underwriter and each person, if any, who controls any reason Underwriter within the foregoing indemnification is unavailable to an Indemnified Party meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and (ii) the Company, its Personnel directors, its officers who sign the Registration Statement, and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or insufficient to hold an Indemnified Party Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or its Personnel harmlessother expenses reasonably incurred in connection with defending or investigating any such action or claim) (i) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, then any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall contribute have furnished any amendments or supplement thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the amount paid statements therein not misleading, but only with reference to information relating to such Selling Shareholder furnished in writing by or payable by an Indemnified Party and/or its Personnel as a result on behalf of such expense, loss, claim, damage or liability Selling Shareholder expressly for use in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault of the Company and the Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liabilityRegistration Statement, any excess of such amount over preliminary prospectus, the amount of the fees received by the Indemnified Party pursuant to this AgreementProspectus or any amendments or supplements thereto.
(c) The Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Shareholders, the directors of the Company, the officers of the Company agrees that in case who sign the Registration Statement and each person, if any, who controls the Company or any Selling Shareholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal proceeding shall be brought against or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company and/or an Indemnified Party and/or its Personnel shall have furnished any amendments or supplements thereto), or caused by any governmental commission omission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is alleged omission to state therein a material fact required to testify in connection therewith be stated therein or shall be required necessary to respond make the statements therein not misleading, but only with reference to procedures designed information relating to discover information regarding, in connection with, or by reason of the performance of professional services rendered such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Indemnified Party and/or its PersonnelRegistration Statement, any preliminary prospectus, the Indemnified Party Prospectus or any amendments or supplements thereto.
(d) The aggregate liability of any Selling Shareholder under the representations and warranties contained in Section 2(g) hereof and for indemnification under Section 9 shall in no event exceed the net proceeds received by such Selling Shareholder from the Underwriters in the offering of the Shares.
(e) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to employ retain its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and but the fees and expenses of such counsel as well as shall be at the costs expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including an amount to reimburse any impleaded parties) include both the Indemnified Party for time spent by it indemnifying party and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result indemnified party and representation of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred both parties by the Indemnified Party same counsel would be inappropriate due to actual or its Personnel in connection therewith potential differing interests between them. It is understood that the indemnifying party shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigationnot, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence legal expenses of any suit brought to enforce such legal proceeding; providedindemnified party in connection with any proceeding or related proceedings in the same jurisdiction, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement (i) the fees and expenses of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own more than one separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
firm (e) The indemnity and contribution obligations of the Company shall be in addition to any liability which local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company may otherwise havewithin the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Selling Shareholders and all persons, shall extend upon if any, who control any Selling Shareholder within the same terms meaning of either such Section, and conditions to the Indemnified Parties that all such fees and its Personnel who are not signatories to this Agreement and expenses shall be binding upon and enure to reimbursed as they are incurred. In the benefit case of any successorssuch separate firm for the Underwriters and such control persons of any Underwriters, assignssuch firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. In the case of any such separate firm for the Company, heirs and personal representatives such directors, officers and control persons of the Company and the Indemnified Parties and its Personnel. The foregoing provisions Company, such firm shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified designated in writing by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf of such person.the
Appears in 1 contract
Sources: Underwriting Agreement (Professional Detailing Inc)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold harmless the UnderwritersUnderwriter and the Forward Counterparty, each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) and each of the directors, officers, employees, shareholders, unitholders, advisors employees and agents of the Indemnified Parties (Underwriter or the “Personnel”) harmless from Forward Counterparty and each person who controls the Underwriter or the Forward Counterparty within the meaning of either the Securities Act or the Exchange Act against any and all expenses, losses (other than loss of profits), feeslosses, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations damages or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which they or any Indemnified Party and/or its Personnel of them may become subject under the Securities Act, the Exchange Act or otherwise involved in any capacity under any statute other Federal or state statutory law or regulation, at common law or otherwise, insofar as such expenses, losses, claims, damages, damages or liabilities (or actions in respect thereof) arise out of or are basedbased upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement for the registration of the Shares and the Additional Shares at the time it became effective or in any amendment thereof, directly in any preliminary prospectus or indirectlyin the Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the performance of professional services rendered omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the Company statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by the Indemnified Party and its Personnel or otherwise them in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of investigating or defending any such actionsloss, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, damage, liability or action; provided, suithowever, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of Company will not be liable in any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnel.
(b) If for any reason the foregoing indemnification is unavailable to an Indemnified Party or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmless, then the Company shall contribute such case to the amount paid or payable by an Indemnified Party and/or its Personnel as a result of extent that any such expense, loss, claim, damage or 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 the Underwriter specifically for inclusion therein; provided, further, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of the Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Shares or Additional Shares, or any person controlling the Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendment or supplement thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law to have been so delivered, at or prior to the written confirmation of the sale of the Shares or the Additional Shares sold by the Underwriter to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless the Company, the Forward Counterparty, the directors, officers, employees and agents of the Company or the Forward Counterparty, each of the Company’s officers who signs the Registration Statement, and each person who controls the Company or the Forward Counterparty within the meaning of either the Securities Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to the Underwriter and the Forward Counterparty, but only with reference to written information relating to the Underwriter furnished to the Company by or on behalf of the Underwriter specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which the Underwriter may otherwise have. The Company acknowledges that the statements set forth (A) in the last paragraph of the cover page regarding delivery of the Additional Shares and (B) under the heading “Underwriting,” (i) the name of the Underwriter and its participation in the sale of the Shares and the Additional Shares, (ii) the sentences related to concessions and reallowances, (iii) the sentences related to underwriting commissions, (iv) the paragraphs related to stabilization and penalty bids, (v) the paragraph relating to online offers and sales, and (vi) the sentences regarding the conduct of the offering in accordance with the rules of NASD, Inc., in any preliminary prospectus and the Prospectus constitute the only information furnished in writing by or on behalf of the Underwriter for inclusion in any preliminary prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure materially prejudices substantial rights or defenses of the indemnifying party and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel 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 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 to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 7 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Underwriter agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively “Losses”) to which the Company, the Underwriter and the Forward Counterparty may be subject in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and by the Indemnified Party and/or its Personnel Underwriter and the Forward Counterparty on the other hand from the offering of the Shares and the Additional Shares; provided, however, that in no case shall the Underwriter be responsible for any amount in excess of the underwriting discount or commission applicable to the Shares and the Additional Shares purchased by the Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriter severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Indemnified Party and/or its Personnel, Underwriter on the other in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees . Benefits received by the Indemnified Party pursuant Company shall be deemed to this Agreement.
be equal to the total net proceeds from the offering (cbefore deducting expenses) received by it, and benefits received by the Underwriter shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Final Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Underwriter on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company agrees and the Underwriter agree that in case it would not be just and equitable if contribution were determined by pro rata allocation or any legal proceeding other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be brought against entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each person who controls the Company and/or an Indemnified Party and/or its Personnel by any governmental commission Underwriter or regulatory authority the Forward Counterparty within the meaning of either the Securities Act or any stock exchange or other entity having regulatory authoritythe Exchange Act and each director, either domestic or foreignofficer, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason employee and agent of the performance of professional services rendered to Underwriter or the Company by the Indemnified Party and/or its Personnel, the Indemnified Party Forward Counterparty shall have the right same rights to employ its own counsel in connection therewith, provided contribution as the Indemnifying Party acts reasonably in selecting such counselUnderwriter, and each person who controls the fees and expenses Company within the meaning of such counsel as well as either the costs (including an amount to reimburse Securities Act or the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result Exchange Act, each officer of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel who shall have signed the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity Registration Statement and contribution obligations each director of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreementparagraph (d).
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf of such person.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “Personnel”) harmless "EXCHANGE ACT"), from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, liabilities without limitation, any legal or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Company by the Indemnified Party and its Personnel or otherwise other expenses reasonably incurred in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of defending or investigating any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened claim) caused by any untrue statement or brought against an Indemnified Party and/or its Personnel.
alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (b) If for any reason the foregoing indemnification is unavailable to an Indemnified Party as amended or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmless, then supplemented if the Company shall contribute have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the amount paid or payable by an Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability statements therein (in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault case of the Company and the Indemnified Party and/or its Personnel, as well as Prospectus or any relevant equitable considerations; provided that the Company shallpreliminary prospectus, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount light of the fees received by the Indemnified Party pursuant to this Agreement.
(ccircumstances under which they were made) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel not misleading, except insofar as such losses, claims, damages or liabilities are caused by any governmental commission such untrue statement or regulatory authority omission or alleged untrue statement or omission based upon information relating to any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required Underwriter furnished to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof by such Underwriter through you expressly for use therein; and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however provided further that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The foregoing indemnity and contribution obligations of the Company shall be in addition with respect to any liability which the Company may otherwise have, preliminary prospectus shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure inure to the benefit of any successorsUnderwriter from whom the person asserting any such liability, assignspurchase Shares, heirs and personal representatives or any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf of such person.have furnished any
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall Each of the Fund and the Investment Adviser, jointly and severally, agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectivelyeither Section 15 of the Securities Act or Section 20 of the Exchange Act, each affiliate of any Underwriter within the “Indemnified Parties” and individually, an “Indemnified Party”) meaning of Rule 405 under the Securities Act and each agent of the directors, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless any Underwriter from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, liabilities without limitation, any legal or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Company by the Indemnified Party and its Personnel or otherwise other expenses reasonably incurred in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of defending or investigating any such actions, suits, investigations, proceedings action or claims that may be made against an Indemnified Party and/or its Personnelclaim), unless caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any Omitting Prospectus, each Preliminary Prospectus, the Time of Sale Prospectus, or the Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and claims, damages or liabilities that are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelFund in writing by such Underwriter through you expressly for use therein.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless each of the Fund and the Investment Adviser, their trustees, members, managers, partners, shareholders, agents, employees, directors and officers (including each officer of the Fund who signs the Registration Statement), each person, if any, who controls the Fund or the Investment Adviser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and successors and assigns of all of the foregoing to the same extent as the foregoing indemnity from the Fund and the Investment Adviser to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Fund in writing by such Underwriter through you expressly for use in the Registration Statement, each Preliminary Prospectus, the Time of Sale Prospectus, any Omitting Prospectus or Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and shall pay the reasonably incurred fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriters within the meaning of Section 405 under the Securities Act or who are agents of any Underwriters, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Fund, its trustees, members, managers, partners, shareholders, agents, employees, directors and officers (including each officer of the Fund who signs the Registration Statement) and each person, if any, who controls the Fund within the meaning of either such Section, and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Investment Adviser, its trustees, members, managers, partners, shareholders, agents, employees, directors and officers and each person, if any, who controls the Investment Adviser within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by the Representatives. In the case of any such separate firm for the Fund, and such trustees, officers and control persons of the Fund, such firm shall be designated in writing by the Fund. In the case of any such separate firm for the Investment Adviser, and such directors and control persons of the Investment Adviser, such firm shall be designated in writing by the Investment Adviser. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent (which may not be unreasonably withheld), but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that 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 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement and (iii) such indemnified party shall have given the indemnifying party at least 30 days prior written notice of its intention to settle. No indemnifying party shall, without the prior written consent of the indemnified party (which may not be unreasonably withheld), effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Fund and the Investment Adviser on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 8(d)(i) above but also the relative fault of the Company Fund and the Indemnified Party and/or its PersonnelInvestment Adviser on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that . The relative benefits received by the Company shallFund and the Investment Adviser on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Fund and the total underwriting discounts and commissions received by the Underwriters, in any eventeach case as set forth in the table on the cover of the Prospectus, contribute bear to the amount paid aggregate Public Offering Price of the Shares. The relative fault of the Fund and the Investment Adviser on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Fund or the Investment Adviser or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 8 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. The Investment Adviser agrees to pay any amounts that are payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party Fund pursuant to this Agreement.
(c) The Company agrees paragraph to the extent that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is Fund fails to make all contributions required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing Fund pursuant to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counselthis Section 8.
(e) The indemnity Fund, the Investment Adviser and the Underwriters agree that it would not be just or equitable if contribution obligations pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the Company equitable considerations referred to in Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in addition connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreementindemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the Fund and the Investment Adviser contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter, any affiliate of any Underwriter or any agent of any Underwriter or by or on behalf of the Investment Adviser, their officers or directors or any person controlling the Investment Adviser or by or on behalf of the Fund, its officers or trustees or any person controlling the Fund and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Sources: Underwriting Agreement (Salient MLP & Energy Infrastructure Fund)
Indemnity and Contribution. (a) The Each of the Company shall and the Management Selling Shareholders, severally and not jointly, agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectively, either Section 15 of the “Indemnified Parties” and individually, an “Indemnified Party”) Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the directorsmeaning of Rule 405 under the Securities Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or the Form 8-K filed by the Company with the Commission on November 4, 2004 (including the exhibit furnished therewith), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the Indemnified Party foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting such losses, claims, damages or liabilities purchased Shares, or any person controlling such Underwriter, if it is established that a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and its Personnel if the Prospectus (as so amended or otherwise supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities; and provided, further, that the liability of each Management Selling Shareholder under such Management Selling Shareholder’s representations and warranties contained in Sections 2(b)(vi)(A) and 2(b)(vii) hereof and under this paragraph (a) shall be limited to an amount equal to the net proceeds received by such Management Selling Shareholder from the sale of such Management Selling Shareholder’s Shares.
(a) Each of SPEI and the Non-Management Selling Shareholders, severally and not jointly, agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the matters referred Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to in this Agreement state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating specifically to such Selling Shareholder, as set forth under the caption “Principal and Selling Stockholders” (including the aggregate amount paid in reasonable settlement notes thereto); provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims any person controlling such Underwriter, if it is established that may be made against a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities; and provided, further, that with respect to any amount due an Indemnified Party and/or its Personnelindemnified person under this paragraph (b), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is each Selling Shareholder shall be liable only to the result extent of the gross negligence, wilful misconduct or fraud net proceeds received by the Selling Shareholder from the sale of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnelsuch Selling Shareholder’s Shares.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Shareholders, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or any Selling Shareholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (A) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (B) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section; (C) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Selling Shareholders (other than SPEI) and all persons, if any, who control any such Selling Shareholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred; and (D) the fees and expenses of more than one separate firm (in addition to any local counsel) for SPEI and all persons who control SPEI within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by M▇▇▇▇▇ S▇▇▇▇▇▇. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Shareholders (other than SPEI) and such control persons of such Selling Shareholders, such firm shall be designated in writing by the persons named as attorneys in fact for such Selling Shareholders under the Powers of Attorney. In the case of any such separate firm for SPEI and such control persons of SPEI, such firm shall be designated in writing by SPEI. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (1) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (2) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 9(a), 9(b) or 9(c) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 9(e)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 9(e)(i) above but also the relative fault of the Company indemnifying party or parties on the one hand and of the Indemnified Party and/or its Personnelindemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees . The relative benefits received by the Indemnified Party Sellers on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by each Seller and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Sellers on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Sellers or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Agreement.
(cSection 9 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. In no event shall the liability of any Selling Shareholder under this Section 9(e) The Company agrees exceed the amount that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is such Selling Shareholder would have been required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting pay under Section 9(b) had such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has indemnification been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not held to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counselavailable thereunder.
(e) The Sellers and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 9 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. The provisions of this Section 9 shall not supersede or otherwise affect any agreement that the Sellers may otherwise have with respect to indemnification between them.
(f) The indemnity and contribution obligations of provisions contained in this Section 9 and the Company shall be in addition to any liability which the Company may otherwise haverepresentations, shall extend upon the same terms warranties and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives other statements of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under Selling Shareholders contained in this Agreement and/or the shall remain operative and in full force and effect regardless of (i) any termination of this Agreement.
, (fii) With respect to any party who may be indemnified investigation made by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, any Selling Shareholder or any person controlling any Selling Shareholder, or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Sources: Underwriting Agreement (Wellcare Health Plans, Inc.)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter and each Selling Stockholder, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectively, either Section 15 of the “Indemnified Parties” and individually, an “Indemnified Party”) Securities Act or Section 20 of the Exchange Act and each director, officer and affiliate of any Underwriter or Selling Stockholder within the directors, officers, employees, shareholders, unitholders, advisors and agents meaning of Rule 405 under the Indemnified Parties (the “Personnel”) harmless Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained or incorporated by reference in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, or the Prospectus or any amendment or supplement thereto, caused by, (i) in the case of any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, or any road show or Testing-the-Waters Communication, any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (ii) in the case of the Registration Statement or any amendment thereof, 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 each case except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out omission or alleged untrue statement or omission based upon (A) in respect of or are basedthe indemnity in favor of the Underwriters, directly or indirectly, upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by or on behalf of such Underwriter or through you expressly for use therein or (B) in respect of the Indemnified Party indemnity in favor of the Selling Stockholders, information relating to such Selling Stockholder furnished in writing by or on behalf of such Selling Stockholder expressly for use therein.
(a) Each Selling Stockholder agrees, severally and its Personnel not jointly, to indemnify and hold harmless the Underwriters, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or otherwise Section 20 of the Exchange Act and each director, officer and affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) that arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained or incorporated by reference in the matters referred Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any road show or Testing-the-Waters Communication, the Prospectus or any amendment or supplement thereto, or arise out of, or are based upon, any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that each Selling Stockholder shall be liable only to the extent any of the foregoing is in reliance upon and in conformity with the |US-DOCS\139195681.10|| Selling Stockholder Information; provided, further, that the liability under this Agreement (including subsection of each Selling Stockholder shall be limited to an amount equal to the aggregate amount paid in reasonable settlement gross proceeds after underwriting commissions and discounts, but before expenses, to such Selling Stockholder from the sale of any Shares sold by such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelSelling Stockholder hereunder.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Stockholders, the Company’s directors, its officers who sign the Registration Statement and each person, if any, who controls the Company or any Selling Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by or on behalf of such Underwriter or through you expressly for use therein, it being understood and agreed upon that the only such information furnished consists of the following information in the Prospectus: the first to fourth and sixth paragraphs, and the second sentence of the fifth paragraph in the section titled “Underwriters—Stabilization.”
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 11(a), 11(b) or 11(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (iii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by the Underwriters. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Stockholders and such controls persons of the Selling Stockholders, such firm shall be designated in writing by the Selling Stockholders. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the foregoing |US-DOCS\139195681.10|| prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes (i) an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) To the extent the indemnification provided for in Section 11(a), 11(b) or 11(c) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein (other than as a result of the limitation on indemnification provided for therein), then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties, damage on the one hand, and the indemnified party or liability parties, on the other hand, from the offering of the Shares or (ii) if the allocation provided by clause 11(e)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 11(e)(i) above but also the relative fault of the Company indemnifying party or parties, on the one hand, and of the Indemnified Party and/or its Personnelindemnified party or parties, on the other hand, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees . The relative benefits received by the Indemnified Party Selling Stockholders, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by each Selling Stockholder and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company and the Selling Stockholders, on the one hand, and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Selling Stockholders or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 11 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Shares they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The Company, the Selling Stockholders and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 11 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 11(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 11(e) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 11, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares that were underwritten by it were offered to the public exceeds the amount of any damages that such |US-DOCS\139195681.10|| Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 11 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 obligations of provisions contained in this Section 11 and the Company shall be in addition to any liability which the Company may otherwise haverepresentations, shall extend upon the same terms warranties and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives other statements of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under Selling Stockholders contained in this Agreement and/or and the agreements regarding expense reimbursement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement.
, (fii) With respect to any party who may be indemnified investigation made by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and or on behalf of such personany Underwriter, any person controlling any Underwriter or any director, officer or affiliate of any Underwriter, or by or on behalf of the Selling Stockholder or any person controlling the Selling Stockholder, or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “Personnel”) harmless "EXCHANGE ACT"), from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information furnished to the Company in writing by any Underwriter through you or by the Indemnified Party and its Personnel Selling Stockholder, expressly for use therein; provided, however, that with respect to any untrue statement or otherwise omission or alleged untrue statement or omission made in connection with any preliminary prospectus, the matters referred foregoing indemnity agreement shall not inure to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 7(a) hereof.
(b) If for The Selling Stockholder agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls any reason Underwriter within the foregoing indemnification is unavailable to an Indemnified Party meaning of either Section 15 of the Securities Act or its Personnel Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or insufficient to hold an Indemnified Party other expenses reasonably incurred in connection with defending or its Personnel harmlessinvestigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, then any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall contribute have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Selling Stockholder furnished in writing by or on behalf of such Selling Stockholder expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto; provided, that with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus the indemnity agreement contained in this subsection (b) shall not inure to the amount paid benefit of any Underwriter from whom the person asserting any such losses, claims, damages or payable liabilities purchased any Shares, to the extent that a prospectus relating to such Shares was required to be delivered by an Indemnified Party and/or its Personnel as a result of such expense, Underwriter under the Act in connection with such purchase and any such loss, claim, damage or liability in of such proportion as is appropriate Underwriter results from the fact that there was not sent or given to reflect not only such person, at or prior to the relative benefits received by written confirmation of the sale of such Shares to such person, a copy of the Prospectus if the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault of the Company and the Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided that the Company shall, in any event, contribute had previously furnished copies thereof to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this AgreementUnderwriter.
(c) The Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Stockholder, the directors of the Company, the officers of the Company agrees that in case who sign the Registration Statement and each person, if any, who controls the Company or the Selling Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal proceeding shall be brought against or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company and/or an Indemnified Party and/or its Personnel shall have furnished any amendments or supplements thereto), or caused by any governmental commission omission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is alleged omission to state therein a material fact required to testify in connection therewith be stated therein or shall be required necessary to respond make the statements therein not misleading, but only with reference to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered furnished to the Company in writing by any Underwriter through you expressly for use in the Indemnified Party and/or its PersonnelRegistration Statement, any preliminary prospectus, the Indemnified Party Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to employ retain its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and but the fees and expenses of such counsel as well as shall be at the costs expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including an amount to reimburse any impleaded parties) include both the Indemnified Party for time spent by it indemnifying party and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result indemnified party and representation of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred both parties by the Indemnified Party or its Personnel in connection therewith same counsel would be inappropriate due to conflicts of interests between them. It is understood that the indemnifying party shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigationnot, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence legal expenses of any suit brought to enforce such legal proceeding; providedindemnified party in connection with any proceeding or related proceedings in the same jurisdiction, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement (i) the fees and expenses of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own more than one separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
firm (e) The indemnity and contribution obligations of the Company shall be in addition to any liability which local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company may otherwise havewithin the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Selling Stockholder and all persons, shall extend upon if any, who control any Selling Stockholder within the same terms meaning of either such Section, and conditions to the Indemnified Parties that all such fees and its Personnel who are not signatories to this Agreement and expenses shall be binding upon and enure to reimbursed as they are incurred. In the benefit case of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, such separate firm for the Underwriters and such control persons of any Underwriters, such firm shall obtain and hold the rights and benefits of this indemnity be designated in trust for and on behalf of such person.writing by Morg▇▇ ▇▇▇n▇▇▇ & ▇o.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) and each either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “PersonnelExchange Act”) harmless ), and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection with foregoing indemnification obligation shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 6(a) hereof.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. Incorporated, in the case of parties indemnified pursuant to Section 7(a), and by the Company, in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 7(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 7(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters’ respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 7 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Shares they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelUnderwriters agree that it would not be just or equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 7(d). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any indemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 7 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Agent and each person, if any, who controls any Agent within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties (the “Personnel”) harmless Exchange Act, from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including without limitation the legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission made in reliance upon the performance of professional services rendered and in conformity with information relating to any Agent furnished to the Company in writing by such Agent expressly for use therein; Each Agent agrees, severally and not jointly, to indemnify and hold harmless the Indemnified Party Company, its directors, its officers who sign the Registration Statement and its Personnel each person who controls the Company within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Agent, but only with reference to information relating to such Agent furnished to the Company in writing by such Agent expressly for use in the Registration Statement or otherwise in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of Prospectus or any such actions, suits, investigations, proceedings amendment or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claimsupplement thereto. If any suit, action, suitproceeding (including any governmental or regulatory investigation), investigation claim or proceeding has been caused solely by demand shall be brought or is the result asserted against any person in respect of which indemnity may be sought pursuant to either of the gross negligencetwo preceding paragraphs, wilful misconduct or fraud such person (the "Indemnified Person") shall promptly notify the person against whom such indemnity may be sought (the "Indemnifying Person") in writing, and the Indemnifying Person, upon request of the Indemnified Party or its Personnel. Without limiting the generality of the foregoingPerson, this indemnity shall apply retain counsel reasonably satisfactory to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel Person to represent the Indemnified Person and any others the Indemnifying Person may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnel.
(b) If for any reason the foregoing indemnification is unavailable to an Indemnified Party or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmless, then the Company shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability designate in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand proceeding and the Indemnified Party and/or its Personnel on the other hand but also the relative fault of the Company and the Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and pay the fees and expenses of such counsel as well as the costs (including an amount related to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposedproceeding. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of In any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnelproceeding, acting reasonably, and none of the any Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel Person shall have the right to appoint their retain its own separate counsel at counsel, but the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity fees and contribution obligations expenses of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf of such person.such
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall and the Selling Stockholder, jointly and severally, agree to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (collectivelythe "EXCHANGE ACT"), the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Underwriter within the directorsmeaning of Rule 405 under the Securities Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), feeslosses, claims, actions damages and liabilities (including shareholder actionsincluding, derivative actions without limitation, any legal or otherwiseother expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), damagesor caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, obligations except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Shares, or any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company has furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, whether joint unless such failure is the result of material noncompliance by the Company with Section 7(a) hereof.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Stockholder, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or severalthe Selling Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a) or 9(b) hereof, such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing (but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection, except to the extent that indemnifying party suffers actual prejudice as a result of such failure) and the reasonable indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of their counsel, that may such counsel shall be incurred in advising with respect at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to and/or defending the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act and (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, the Selling Stockholder, the directors of the Company, the officers of the Company who sign the Registration Statement each person, if any, who controls the Company or the Selling Stockholder -24- within the meaning of either such Section. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by Morgan Stanley & Co. Incorporated. In the case of any such se▇▇▇▇▇▇ ▇▇▇▇ ▇▇r the Company, and such directors, officers and control persons of the Company or the Selling Stockholder, such firm shall be designated in writing by the Company and the Selling Stockholder. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened claims, actions, suits, investigations or proceedings to proceeding in respect of which any Indemnified Party and/or its Personnel may become 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.
(d) To the extent the indemnification provided for in Section 9(a) or otherwise involved 9(b) hereof is unavailable to an indemnified party or insufficient in respect of any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages or liabilities referred to therein, liabilities or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered except to the Company by extent (but only to the Indemnified Party and its Personnel or otherwise in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities extent) that the Indemnified Parties and/or their Personnel may incur indemnifying party suffers actual prejudice as a result of any action failure by the indemnified party to notify the indemnifying party of any action, proceeding or litigation that may be threatened or brought against an Indemnified Party and/or its Personnel.
investigation as contemplated by subsection (bc) If for any reason the foregoing indemnification is unavailable to an Indemnified Party or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmlessof this Section 9, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by Section 9(d)(i) hereof is not permitted by applicable law, damage or liability if the indemnified party failed to give the notice required under subsection (c) above, then, except to the extent (but only to the extent) that the indemnifying party suffers actual prejudice as a result of any failure by the indemnified party to notify the indemnifying party of any action, proceeding or investigation as contemplated by subsection (c) of this Section 9, in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in Section 9(d)(i) hereof but also the relative fault of the Company indemnifying party or parties on the one hand and of the Indemnified Party and/or its Personnelindemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees . The relative benefits received by the Indemnified Party Company or the Selling Stockholder on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Selling Stockholder and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company or the Selling Stockholder on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Selling Stockholder or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 9 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Shares they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The Company, the Selling Stockholder and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(d) hereof. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 9 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 obligations of provisions contained in this Section 9 and the Company shall be in addition to any liability which the Company may otherwise haverepresentations, shall extend upon the same terms warranties and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives other statements of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under Selling Stockholder contained in this Agreement and/or the shall remain operative and in full force and effect regardless of (i) any termination of this Agreement.
, (fii) With respect to any party who may be indemnified investigation made by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, the Selling Stockholder or any person controlling the Selling Stockholder, or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares; provided, however, that if this Agreement shall be terminated pursuant to Section 10(i), (iii), (iv), or (v) or the second paragraph of Section 11 hereof, the Company and the Selling Stockholder shall have no liability to you.
Appears in 1 contract
Sources: Underwriting Agreement (Todco)
Indemnity and Contribution. (a) The Company shall Each of the Fund and the Adviser, jointly and severally, agrees to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Exchange Act (the “Personnel”a "CONTROLLING PERSON") harmless from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, liabilities without limitation, any legal or actions arise out of other expenses reasonably incurred by any Underwriter or are based, directly or indirectly, upon the performance of professional services rendered to the Company by the Indemnified Party and its Personnel or otherwise any such controlling person in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the matters referred Registration Statement or any amendment thereof, any preliminary prospectus, any Omitting Prospectus or the Prospectus (as amended or supplemented if the Fund shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission based upon information relating to any Underwriter or furnished to the Fund or the Adviser in this Agreement (including writing by any Underwriter through you expressly for use therein; provided that the aggregate amount paid in reasonable settlement foregoing indemnity agreement with respect to any preliminary prospectus or any Omitting Prospectus shall not inure to the benefit of any Underwriter from whom the person asserting such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares or Additional Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of a Prospectus (as then amended or supplemented if the Fund shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law to have been delivered, at or prior to the written confirmation of the sale of the Shares or Additional Shares to such person, and if a Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligenceFund with Section 7(b) hereof; provided further, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of Adviser will be required to indemnify and hold harmless any action or litigation indemnified party pursuant to this Section 8(a) only to the extent that may be threatened or brought against an Indemnified Party and/or its Personnelthe Fund fails to indemnify and hold harmless such indemnified party pursuant to this Section 8(a).
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Fund and the Adviser, their respective directors or trustees, and each officer of the Fund who signs the Registration Statement and each person, if any, who controls the Fund or the Adviser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Prospectus (as amended or supplemented if the Fund shall have furnished any amendments or supplements thereto), any preliminary prospectus, or any Omitting Prospectus, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Underwriter furnished to the Fund or the Adviser in writing by such Underwriter through you expressly for use in the Registration Statement, the Prospectus, any amendment or supplement thereto, or any preliminary prospectus.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either of Section 8(a) or 8(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is under stood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (x) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control Underwriters within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, (y) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Fund, its trustees, its officers who sign the Registration Statement and each person, if any, who controls the Fund within the meaning of either such Section, and (z) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Adviser, its directors and each person, if any, who controls the Adviser within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons of Underwriters, such firm shall be designated in writing by Morg▇▇ Stan▇▇▇ & ▇o. Incorporated. In the case of any such separate firm for the Fund, and such trustees, officers and control persons of the Fund, such firm shall be designated in writing by the Fund. In the case of any such separate firm for the Adviser, and such directors and control persons of the Adviser, such firm shall be designated in writing by the Adviser. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this Section 8(c), 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 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. Notwithstanding the immediately preceding sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, an indemnifying party shall not be liable for any settlement of the nature contemplated by such sentence effected without its consent if such indemnifying party (i) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (ii) provides written notice to the indemnified party substantiating the unpaid balance as unreasonable, in each case prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such Section, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Fund and the Adviser on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by Section 8(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in Section 8(d)(i) above but also the relative fault of the Company Fund and the Indemnified Party and/or its PersonnelAdviser on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees . The benefits received by the Indemnified Party Fund or the Adviser shall be deemed to equal the aggregate public offering price of the Shares. The benefits received by the Underwriters shall be deemed to equal the product of $0.40 times the aggregate number of Shares purchased by the Underwriters hereunder. The relative fault of the parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Fund or the Adviser on the one hand or by the Underwriters on the other hand and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 8 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Shares they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity Fund, the Adviser and the Underwriters agree that it would not be just or equitable if contribution obligations pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the Company equitable considerations referred to in Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in addition connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreementindemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 8 and the representations and warranties of the Fund and the Adviser contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, its officers or directors or any person controlling any Underwriter, the Adviser, its officers or directors or any person controlling the Adviser or the Fund, its officers or trustees or any person controlling the Fund and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Sources: Underwriting Agreement (Van Kampen American Capital Senior Income Trust)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each affiliate of their subsidiaries and affiliates (collectivelyany Underwriter that assists such Underwriter in the distribution of the Offered Securities, the “Indemnified Parties” and individually, an “Indemnified Party”) and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties (the “Personnel”) harmless Exchange Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred by any Underwriter, any such affiliate or any such controlling person in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Indemnified Party and its Personnel or otherwise in connection Manager expressly for use therein; provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Offered Securities, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Offered Securities to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 5(a) hereof.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Manager expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either paragraph (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 and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Manager, in the case of parties indemnified pursuant to paragraph (a) above, and by the Company, in the case of parties indemnified pursuant to paragraph (b) above. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the foregoing prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or (b) of this Section 6 is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Offered Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, damage or liability 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 Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Offered Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of such Offered Securities (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus Supplement, bear to the aggregate public offering price of the Offered Securities. The relative fault of the Company on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 6 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective principal amounts of Offered Securities they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelUnderwriters agree that it would not be just or equitable if contribution pursuant to this Section 6 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) of this Section 6. The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 6, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Offered Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. 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) With respect to The indemnity and contribution provisions contained in this Section 6 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter or any person controlling any Underwriter or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Offered Securities.
Appears in 1 contract
Sources: Underwriting Agreement (York International Corp /De/)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Initial Purchaser and each person, if any, who controls any Initial Purchaser within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties (Exchange Act, and each affiliate of each Initial Purchaser within the “Personnel”) harmless meaning of Rule 405 under the Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in either Memorandum (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Initial Purchaser furnished to the Company in writing by such Initial Purchaser through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity agreement with respect to any Preliminary Memorandum shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Initial Purchaser from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Notes, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Initial Purchaser, if a copy of the Final Memorandum (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Initial Purchaser to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Notes to such person, and if the Final Memorandum (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct Company with Section 6(a) hereof or fraud of unless such defect shall have been cured by a document which is incorporated or deemed to be incorporated by reference in the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelFinal Memorandum.
(b) If Each Initial Purchaser agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Initial Purchaser, but only with reference to information relating to such Initial Purchaser furnished to the Company in writing by such Initial Purchaser through you expressly for use in either Memorandum or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, in the case of parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Initial Purchasers on the other hand from the offering of the Notes or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative fault of the Company on the one hand and of the Initial Purchasers on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Initial Purchasers on the other hand but also in connection with the offering of the Notes shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Notes (before deducting expenses) received by the Company and the total discounts and commissions received by the Initial Purchasers bear to the aggregate offering price of the Notes. The relative fault of the Company on the one hand and of the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Initial Purchasers and the Indemnified Party and/or its Personnelparties' relative intent, as well as any relevant equitable considerations; provided that the Company shallknowledge, in any event, access to information and opportunity to correct or prevent such statement or omission. The Initial Purchasers' respective obligations to contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that Section 8 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective principal amount of Notes they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelInitial Purchasers agree that it would not be just or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(d). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 8, no Initial Purchaser shall be required to contribute any amount in excess of the amount by which the total price at which the Notes resold by it in the initial placement of such Notes were offered to investors exceeds the amount of any damages that such Initial Purchaser 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 remedies provided for in this Section 8 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) With respect to The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Initial Purchaser or any person controlling any Initial Purchaser or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Notes.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) and each either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “PersonnelExchange Act”) harmless ), and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act, from and against any and all expenses, losses (other than loss of profits), feeslosses, claims, actions damages and liabilities (including shareholder actionsincluding, derivative actions without limitation, any legal or otherwiseother expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), damagesor caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, obligations except insofar as such losses, claims, damages or liabilitiesliabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, whether joint or several, and the reasonable fees and expenses of their counselhowever, that may be incurred in advising the foregoing indemnity agreement with respect to and/or defending any actual or threatened preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, actionsdamages or liabilities purchased Shares, suitsor any person controlling such Underwriter, investigations if a copy of the Prospectus (as then amended or proceedings supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to which such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities unless such failure is the result of noncompliance by the Company with paragraph (a) of Section 7. The Company also agrees to indemnify and hold harmless M▇▇▇▇▇ S▇▇▇▇▇▇ and each person, if any, who controls M▇▇▇▇▇ S▇▇▇▇▇▇ within the meaning of either Section 15 of the Act, or Section 20 of the Exchange Act, from and against any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, and all losses, claims, damages, liabilities or actions arise out and judgments incurred as a result of or are based, directly or indirectly, upon M▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ participation as a “qualified independent underwriter” within the performance meaning of professional services rendered to Rule 2720 of the Company by the Indemnified Party and its Personnel or otherwise National Association of Securities Dealers’ Conduct Rules in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result offering of the gross negligenceShares, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), except for any losses, claims claims, damages, liabilities, and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action judgments resulting from M▇▇▇▇▇ ▇▇▇▇▇▇▇’▇, or litigation that may be threatened such controlling person’s, gross negligence or brought against an Indemnified Party and/or its Personnelwillful misconduct.
(b) If The Selling Shareholder agrees to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto; provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Shares, or any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities unless such failure is the result of noncompliance by the Company with paragraph (a) of Section 7. The liability of the Selling Shareholder under the indemnity agreement contained in this paragraph shall be limited to an amount equal to the net proceeds received by the Selling Shareholder from the sale of Shares in the Public Offering.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Shareholder, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or the Selling Shareholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to an actual or potential conflict (based upon the advice of outside counsel to the indemnified party). It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Selling Shareholder and all persons, if any, who control the Selling Shareholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by M▇▇▇▇▇ S▇▇▇▇▇▇ and S▇▇▇▇▇▇ ▇▇▇▇▇ B▇▇▇▇▇ Inc. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Shareholder and such control persons of the Selling Shareholder, such firm shall be designated in writing by the Selling Shareholder. Notwithstanding anything contained herein to the contrary, if indemnity may be sought pursuant to Section 9 indemnifying M▇▇▇▇▇ S▇▇▇▇▇▇ hereof in respect of such action or proceeding, then in addition to such separate firm for the indemnified parties, the indemnifying party shall be liable for the reasonable fees and expenses of not more than one separate firm (in addition to any local counsel) for M▇▇▇▇▇ S▇▇▇▇▇▇ in its capacity as a “qualified independent underwriter” and all persons, if any, who control M▇▇▇▇▇ S▇▇▇▇▇▇ within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a), 9(b) or 9(c) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 9(e)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 9(e)(i) above but also the relative fault of the Company indemnifying party or parties on the one hand and of the Indemnified Party and/or its Personnelindemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that . The relative benefits received by the Company shallSellers on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by each Seller and the total underwriting discounts and commissions received by the Underwriters, in any eventeach case as set forth in the table on the cover of the Prospectus, contribute bear to the aggregate Public Offering Price of the Shares. The relative fault of the Sellers on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Sellers or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 9 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. The liability of the Selling Shareholder under the contribution agreement contained in this paragraph shall be limited to an amount equal to the net proceeds received by the Selling Shareholder from the sale of Shares in the Public Offering.
(f) The Sellers and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(e). The amount paid or payable by the Indemnified Party and/or its Personnel an indemnified party as a result of such expensethe losses, lossclaims, claimdamages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, damage or liabilitysubject to the limitations set forth above, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify expenses reasonably incurred by such indemnified party in connection therewith with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, no Underwriter shall be required to respond contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to procedures designed the public were offered to discover information regarding, in connection with, or the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the performance meaning of professional services rendered Section 11(f) of the Securities Act) shall be entitled to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses contribution from any person who was not guilty of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf of such person.fraudulent
Appears in 1 contract
Sources: Underwriting Agreement (Seagate Technology Holdings)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectively, either Section 15 of the “Indemnified Parties” and individually, an “Indemnified Party”) Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the directors, officers, employees, shareholders, unitholders, advisors and agents meaning of Rule 405 under the Indemnified Parties (the “Personnel”) harmless Securities Act from and against any and all expenses, losses (other than loss of profits), feeslosses, claims, actions damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim, but excluding loss of profits and other consequential damages) (collectively, “Damages”) caused by any misrepresentation or untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus (including shareholder actions, derivative actions or otherwisethe Canadian Preliminary Prospectus), damagesthe Time of Sale Prospectus or any amendment or supplement thereto, obligations any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any marketing materials, any Company information that the Company has filed, or liabilitiesis required to file, whether joint pursuant to Rule 433(d) under the Securities Act, any road show, or severalthe Prospectuses or any amendment or supplement thereto, or caused by any misrepresentation or omission or alleged misrepresentation or 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 Damages are caused by any such misrepresentation or untrue statement or omission or alleged misrepresentation or untrue statement or omission based upon (i) information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in paragraph (b) below, or (ii) the Selling Shareholder Information. The rights of indemnity contained in this paragraph will not inure to the benefit of an indemnified party in respect of a claim if the person asserting the claim, other than a person to which Subject Shares were offered and sold in the United States, was not provided by or on behalf of the Underwriters with a copy furnished promptly by the Company of any Prospectus or any amendment or supplement thereto which would have corrected any misrepresentation which is the basis of the claim and which was required under Canadian Securities Laws to be delivered to that person by the Underwriters.
(b) Each Selling Shareholder agrees, severally and not jointly (and not solidarily, nor jointly and severally), to indemnify and hold harmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all Damages caused by any misrepresentation or untrue statement or alleged untrue statement of a material fact in any Selling Shareholder Information relating to such Selling Shareholder contained in the Registration Statement or any amendment thereof, any preliminary prospectus (including the Canadian Preliminary Prospectus), the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any marketing materials, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any road show, or the Prospectuses or any amendment or supplement thereto, or caused by any misrepresentation or omission or alleged misrepresentation or omission to state in any Selling Shareholder Information related to such Selling Shareholder contained therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to any Selling Shareholder Information furnished in writing by or on behalf of such Selling Shareholder expressly for use therein. The liability of each Selling Shareholder under the indemnity agreement contained in this paragraph shall be limited to a maximum aggregate amount equal to the aggregate public offering price of the Shares, less the applicable underwriting discounts and commissions, sold by such Selling Shareholder under this Agreement. The rights of indemnity contained in this paragraph will not inure to the benefit of an indemnified party in respect of a claim if the person asserting the claim, other than a person to which Subject Shares were offered and sold in the United States, was not provided by or on behalf of the Underwriters with a copy furnished promptly by the Company of any Prospectus or any amendment or supplement thereto which would have corrected any misrepresentation which is the basis of the claim and which was required under Canadian Securities Laws to be delivered to that person by the Underwriters.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Shareholders, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or any Selling Shareholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus (including the Canadian Preliminary Prospectus), the Time of Sale Prospectus, any issuer free writing prospectus, marketing materials, road show, or the Prospectuses or any amendment or supplement thereto, it being understood and agreed that the only such information furnished by any Underwriter consists of the following information in the Prospectuses furnished on behalf of each Underwriter: the information contained in the tenth through thirteenth paragraphs under the caption “Plan of Distribution” in the Time of Sale Prospectus and the Final U.S. Prospectus.
(d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 10(a), 10(b) or 10(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the reasonable fees and expenses of their such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, that may (ii) the indemnifying party has failed within a reasonable time to retain counsel for the indemnified party in accordance with the preceding sentence, or (iii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be incurred in advising with respect inappropriate due to and/or defending any actual or threatened claimspotential differing interests between them. It is understood that the indemnifying party shall not, actions, suits, investigations or proceedings to which in respect of the legal expenses of any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damages, liabilities or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Company by the Indemnified Party and its Personnel or otherwise indemnified party in connection with any proceeding or related proceedings in the matters referred same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel, which shall include counsel in each of the United States and Canada in the case of a matter involving U.S. and Canadian law) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel, which shall include counsel in each of the United States and Canada in the case of a matter involving U.S. and Canadian law) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel, which shall include counsel in each of the United States and Canada in the case of a matter involving U.S. and Canadian law) for all Selling Shareholders and all persons, if any, who control any Selling Shareholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by the Managers authorized to appoint counsel under this Agreement Section set forth in Schedule I-A hereto. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Shareholders and such control persons of any Selling Shareholders, such firm shall be designated in writing by such Selling Shareholders (including or, in the aggregate amount paid in reasonable case of Management Selling Shareholders, by the person named as attorney-in-fact for such Management Selling Shareholders under the POA and Custody Agreement). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such actionsconsent or if there be a final judgment for the plaintiff, suitsthe indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, investigationsif at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, proceedings 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 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless (i) such settlement includes an unconditional release of such indemnified party from all liability on claims that may be made against are the subject matter of such proceeding and (ii) does not include a statement as to, or an Indemnified Party and/or its Personnel)admission of, unless such actual fault, culpability or threatened claim, action, suit, investigation or proceeding has been caused solely a failure to act by or is the result on behalf of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnelindemnified party.
(be) If To the extent the indemnification provided for any reason the foregoing indemnification in Section 10(a), 10(b) or 10(c) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any Damages referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenseDamages (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the Offering or (ii) if the allocation provided by clause 10(e)(i) above is not permitted by applicable law, loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 10(e)(i) above but also the relative fault of the Company indemnifying party or parties on the one hand and of the Indemnified Party and/or its Personnel, as well as indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such Damages and any other relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees . The relative benefits received by the Indemnified Party Sellers on the one hand and the Underwriters on the other hand in connection with the Offering shall be deemed to be in the same respective proportions as the net proceeds from the Offering (before deducting expenses) received by each Seller and the total underwriting discounts and commissions received by the Underwriters bear to the aggregate initial public offering price of the Shares set forth in the U.S. Final Prospectus. The relative fault of the Sellers on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the misrepresentation or untrue statement of a material fact or alleged misrepresentation or untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Sellers or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such misrepresentation, statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Agreement.
(c) Section 10 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. The Company agrees that liability of each Selling Shareholder under the contribution agreement contained in case any legal proceeding this paragraph shall be brought against limited to a maximum aggregate amount equal to the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason aggregate public offering price of the performance of professional services rendered to Shares, less the Company applicable less the applicable underwriting discounts and commissions, sold by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered Selling Shareholder under this Agreement and/or the termination of this Agreement.
(f) With respect The Sellers and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 10 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 10(e). The amount paid or payable by an indemnified party as a result of the Damages referred to in Section 10(e) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 10, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such misrepresentation or untrue statement or alleged misrepresentation or 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 remedies provided for in this Section 10 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party who may be indemnified by at law or in equity. (g) The indemnity and contribution provisions contained in this Section 10 and the above indemnity is not a party to representations, warranties and other statements of the Company and the Selling Shareholders contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such person.any Underwriter, any person controlling any Underwriter or any affiliate of any Underwrite
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) and each either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “PersonnelExchange Act”) harmless ), and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act, from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, further, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 6(a) hereof.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. Incorporated, in the case of parties indemnified pursuant to Section 7(a), and by the Company, in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 7(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 7(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters’ respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 7 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Shares they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelUnderwriters agree that it would not be just or equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 7(d). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 7 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Indemnity and Contribution. (ajjj) The Company shall agrees to indemnify and hold the Underwritersharmless each Initial Purchaser, each person, if any, who controls any Initial Purchaser within the meaning of their subsidiaries and affiliates (collectivelyeither Section 15 of the Securities Act or Section 20 of the Exchange Act, the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Initial Purchaser within the directors, officers, employees, shareholders, unitholders, advisors and agents meaning of Rule 405 under the Indemnified Parties (the “Personnel”) harmless Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, liabilities without limitation, any legal or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Company by the Indemnified Party and its Personnel or otherwise other expenses reasonably incurred in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of defending or investigating any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened claim) caused by any untrue statement or brought against an Indemnified Party and/or its Personnel.
alleged untrue statement of a material fact contained in either Memorandum (b) If for any reason the foregoing indemnification is unavailable to an Indemnified Party as amended or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmless, then supplemented if the Company shall contribute have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact necessary to make the amount paid or payable by an Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability statements therein in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault light of the Company and the Indemnified Party and/or its Personnelcircumstances under which they were made not misleading, except (i) insofar as well as any relevant equitable considerations; provided that the Company shallsuch losses, in any eventclaims, contribute to the amount paid damages or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel liabilities are caused by any governmental commission such untrue statement or regulatory authority omission or alleged untrue statement or omission based upon information relating to any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required Initial Purchaser furnished to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing by such Initial Purchaser through any of you expressly for use therein and (ii) insofar as the sale to the person asserting any such losses, claims, damages or liabilities was an initial resale by such Initial Purchaser and any such losses, claims, damages or liabilities of or with respect to such Initial Purchaser results from the fact that both (A) to the extent required by applicable law, the Company has sustained the burden of proving that a copy of the commencement thereof andFinal Memorandum was not sent or given to such person at or prior to the written confirmation of the sale of such Securities to such person and (B) the untrue statement in or omission from the Preliminary Memorandum was corrected in the Final Memorandum unless, throughout in either case, such failure to deliver the course thereof, will Final Memorandum was a result of the Company's failure to provide copies of all relevant documentation the corrected Final Memorandum to such Initial Purchaser prior to the Company, will keep the Company advised written confirmation of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf sale of such personSecurities.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (collectivelythe "EXCHANGE ACT"), the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Underwriter within the directorsmeaning of Rule 405 under the Securities Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus or any amendments or supplements thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 6(a) hereof.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any 12 proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, in the case of parties indemnified pursuant to Section 7(a), and by the Company, in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (1) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Shares or (2) if the allocation provided by clause 7(d)(1) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 7(d)(1) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 7 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Shares they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelUnderwriters agree that it would not be just or equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 7(d). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to 13 contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 7 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Sources: Underwriting Agreement (Engenio Information Technologies, Inc.)
Indemnity and Contribution. (ai) The Company shall agrees to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “Personnel”) harmless "EXCHANGE ACT"), and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act, from and against any and all expenses, losses (other than loss of profits), feeslosses, claims, actions damages and liabilities (including shareholder actionsincluding, derivative actions without limitation, any legal or otherwiseother expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), damagesor caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, obligations except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Shares, or any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, whether joint unless the failure to send or severalgive such Prospectus is the result of noncompliance by the Company with Section 6(a) hereof.
(ii) The Company also agrees to indemnify and hold harmless Morgan Stanley & Co. Incorporated ("Morgan Stanley") and each ▇▇r▇▇▇, ▇▇ any, who controls Mor▇▇▇ ▇▇a▇▇▇▇ ▇▇thin the meaning of either Section 15 of ▇▇▇ ▇▇c▇▇▇▇▇▇▇ Act or Section 20 of the Exchange Act, from and the reasonable fees against any and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, all losses, claims, damages, liabilities or actions arise out and judgments incurred as a result of or are based, directly or indirectly, upon Morgan Stanley's participation as a "qualified independent ▇▇▇▇▇▇▇▇▇▇▇" ▇▇thin the performance meaning of professional services rendered to Rule 2720 of the Company by the Indemnified Party and its Personnel or otherwise National Association of Securities Dealers' Conduct Rules in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result offering of the gross negligenceShares, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), except for any losses, claims claims, damages, liabilities, and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action judgments resulting from Morgan Stanley's or litigation that may be threatened or brought against an Indemnified Party and/or its Personnelsuch controlling person's willful misc▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ negligence.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Notwithstanding anything contained herein to the contrary, if indemnity may be sought pursuant to Section 7(a)(ii) hereof in respect of such action or proceeding, then in addition to such separate firm for the indemnified parties, the indemnifying party shall be liable for the reasonable fees and expenses of not more than one separate firm (in addition to any local counsel) for Morgan Stanley in its capacity as a "qualified independent under▇▇▇▇▇▇" ▇▇▇ ▇▇l persons, if any, who control Morgan Stanley within the ▇▇▇▇▇▇▇ of either Section 15 of the Securities Act or Section 20 of the Exchange Act. Such firm or firms shall be designated in writing by Morgan Stanley & Co. Incorporated, in the case of parties indemn▇▇▇▇▇ pursuan▇ ▇▇ Section 7(a), and by the Company, in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the foregoing prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 7(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 7(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 7 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Shares they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelUnderwriters agree that it would not be just or equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 7(d)(i). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 7 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter or any person controlling any Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, the officers or directors of the Company or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Sources: Underwriting Agreement (Montpelier Re Holdings LTD)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) and each either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “PersonnelExchange Act”) harmless ), and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act, from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by or on behalf of such Underwriter through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liability purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 7(a) hereof.
(b) If The Selling Shareholder agrees to indemnify and hold harmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act, and the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Selling Shareholder furnished in writing by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto. The liability of the Selling Shareholder under the indemnity agreement contained in this paragraph shall be limited to an amount equal to the aggregate Public Offering Price of the Shares sold by the Selling Shareholder under this Agreement.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Shareholder, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or the Selling Shareholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Selling Shareholder and all persons, if any, who control the Selling Shareholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by ▇▇ ▇▇▇▇▇▇. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Shareholder and such control persons of the Selling Shareholder, such firm shall be designated in writing by the persons named as attorneys-in-fact for the Selling Shareholder under the Power of Attorney. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the foregoing prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a), 9(b) or 9(c) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 9(e)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 9(e)(i) above but also the relative fault of the Company indemnifying party or parties on the one hand and of the Indemnified Party and/or its Personnelindemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees . The relative benefits received by the Indemnified Party Sellers on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by each Seller and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Sellers on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Sellers or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Agreement.
(c) Section 9 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. The Company agrees that liability of the Selling Shareholder under the contribution agreement contained in case any legal proceeding this paragraph shall be brought against limited to an amount equal to the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason aggregate Public Offering Price of the performance of professional services rendered to the Company Shares sold by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered Selling Shareholder under this Agreement and/or the termination of this Agreement.
(f) With respect The Sellers and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party who may be indemnified by at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 9 and the above indemnity is not a party to representations, warranties and other statements of the Company and the Selling Shareholder contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, the Selling Shareholder or any person controlling the Selling Shareholder, or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Sources: Underwriting Agreement (Motive Inc)
Indemnity and Contribution. (ai) The Company shall and CME agree to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (collectivelythe "EXCHANGE ACT"), the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Underwriter within the directorsmeaning of Rule 405 under the Securities Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), feeslosses, claims, actions damages and liabilities (including shareholder actionsincluding, derivative actions without limitation, any legal or otherwiseother expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company or CME shall have furnished any amendments or supplements thereto), damagesor caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, obligations except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to (i) any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein or (ii) any Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use therein other than information with respect to any position, office or other relationship which any Selling Shareholder has had with, and which is material to, the Company or any of its predecessors or affiliates within three years prior to the date of the Prospectus; PROVIDED, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Shares, or any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, whether joint unless such failure is the result of noncompliance by the Company with Section 7(a) hereof.
(ii) The Company agrees to indemnify and hold harmless each Selling Shareholder, each person, if any, who controls any Selling Shareholder within the meaning of either Section 15 of the Securities Act, or severalSection 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use therein. Notwithstanding the foregoing, and subject to Section 9(b), the parties hereto agree that CME shall only be liable for amounts payable under Section 9(a)(i) in the event that (i) the Company is bankrupt or insolvent or (ii) an indemnified party (as defined below) shall have obtained a judicial judgment, order or decree (in each case which has not been appealed) for amounts payable to such indemnified party under Section 9(a)(i) (including reimbursement of reasonable legal fees or other expenses) and such indemnified party shall have made a demand upon the Company for payment of such amounts following such judgment, order or decree, which demand remains unsatisfied for 60 days or more.
(b) Each Selling Shareholder agrees, severally and not jointly, to indemnify and hold harmless the Company, the directors of the Company and the officers of the Company who sign the Registration Statement, each Underwriter, each person, if any, who controls the Company or any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Selling Shareholder furnished in writing to the Company by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto. The liability of each Selling Shareholder under the indemnity agreement contained in this paragraph shall be limited to an amount equal to the aggregate Public Offering Price of the Shares sold by such Selling Shareholder under this Agreement.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Shareholders, the directors and officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or any Selling Shareholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing, and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the reasonable fees and expenses of their more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the reasonable fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the reasonable fees and expenses of more than one separate firm (in addition to any local counsel) for all Selling Shareholders and all persons, if any, who control any Selling Shareholder within the meaning of either such Section, and that may all such fees and expenses shall be incurred reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in advising writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Shareholders and such control persons of any Selling Shareholders, such firm shall be designated in writing by the persons named as attorneys-in-fact for the Selling Shareholders under the Powers of Attorney. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with respect such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to and/or defending indemnify the indemnified party from and against any actual loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened claims, actions, suits, investigations or proceedings to proceeding in respect of which any Indemnified Party and/or its Personnel may become 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.
(e) To the extent the indemnification provided for in Section 9(a), 9(b) or otherwise involved 9(c) is unavailable to an indemnified party or insufficient in respect of any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damages, damages or liabilities or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Company by the Indemnified Party and its Personnel or otherwise in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnel.
(b) If for any reason the foregoing indemnification is unavailable to an Indemnified Party or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 9(e)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 9(e)(i) above but also the relative fault of the Company indemnifying party or parties on the one hand and of the Indemnified Party and/or its Personnelindemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided . The relative benefits received by the Sellers on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by each Seller and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Sellers on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Sellers or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters' respective obligations to contribute pursuant to this Section 9 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. The parties hereto agree that CME shall only be liable for amounts payable under this Section 9(e) in the event that (i) the Company shallis bankrupt or insolvent or (ii) an indemnified party shall have obtained a judicial judgment, order or decree (in each case which has not been appealed) for amounts payable to such indemnified party under this Section 9(e) (including reimbursement of legal fees or other expenses) and such indemnified party shall have made a demand upon the Company for payment of such amounts following such judgment, order or decree, which demand remains unsatisfied for 60 days or more.
(f) The Sellers, CME and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 9 were determined by PRO RATA allocation (even if the Underwriters were treated as one entity for such purpose) or by any event, contribute other method of allocation that does not take account of the equitable considerations referred to the in Section 9(e). The amount paid or payable by the Indemnified Party and/or its Personnel an indemnified party as a result of such expensethe losses, lossclaims, claimdamages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, damage or liabilitysubject to the limitations set forth above, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify expenses reasonably incurred by such indemnified party in connection therewith with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, no Underwriter shall be required to respond contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to procedures designed the public were offered to discover information regarding, in connection with, or the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the performance meaning of professional services rendered Section 11(f) of the Securities Act) shall be entitled to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses contribution from any person who was not guilty of such counsel as well as the costs (including an amount fraudulent misrepresentation. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies which may otherwise be available to reimburse the Indemnified Party for time spent by it and its Personnel any indemnified party at law or in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occurequity.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(eg) The indemnity and contribution obligations provisions contained in this Section 9 and the representations, warranties and other statements of the Company shall be Company, CME and the Selling Shareholders contained in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement shall remain operative and shall be binding upon in full force and enure to the benefit effect regardless of (i) any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
, (fii) With respect to any party who may be indemnified investigation made by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and or on behalf of such any Underwriter, any person.
Appears in 1 contract
Sources: Underwriting Agreement (Chicago Mercantile Exchange Holdings Inc)
Indemnity and Contribution. (a) The Company shall Sellers, jointly and severally, agree to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “Personnel”) harmless "Exchange Act"), from and against any and all expenses, losses (other than loss of profits), feeslosses, claims, actions damages and liabilities (including shareholder actionsincluding, derivative actions without limitation, any legal or otherwiseother expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), damagesor caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, obligations except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; PROVIDED, HOWEVER, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Shares, or any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law to have been so delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, whether joint unless such failure is the result of noncompliance by the Company with Section 7(a) or severalSection 7(c).
(b) Each Selling Shareholder agrees, severally and not jointly, to indemnify and hold harmless each Underwriter and the reasonable fees Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls each Underwriter or the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses of their counsel, that may be reasonably incurred in advising connection with respect defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to and/or defending state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Selling Shareholder furnished in writing by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, any actual preliminary prospectus, the Prospectus or threatened claimsany amendments or supplements thereto. [Notwithstanding anything contained herein to the contrary, actionsno Selling Shareholder, suitsother than Beacon, investigations shall be liable under this Section 8 for any amount in excess of the total proceeds (before deducting expenses) received by such Selling Shareholder from the Underwriters for the Shares sold by such Selling Shareholder hereunder.]
(c) The Company agrees to indemnify and hold harmless ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and each person, if any, who controls ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ within the meaning of either Section 15 of the Securities Act, or proceedings to which Section 20 of the Exchange Act, from and against any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, and all losses, claims, damages, liabilities or actions arise out and judgments incurred as a result of or are based, directly or indirectly, upon ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ participation as a "qualified independent underwriter" within the performance meaning of professional services rendered to Rule 2720 of the Company by the Indemnified Party and its Personnel or otherwise National Association of Securities Dealers' Conduct Rules in connection with the matters referred offering of the Shares, except for any losses, claims, damages, liabilities, and judgments resulting from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ or such controlling person's, willful misconduct.
(d) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Shareholders, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or any Selling Shareholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in this Agreement connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(e) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a), 8(b), 8(c) or 8(d), such person (the aggregate amount paid "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Selling Shareholders and all persons, if any, who control any Selling Shareholder within the meaning of either such Section, and that all such reasonable fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons of any Underwriters, such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Shareholders and such control persons of any Selling Shareholders, such firm shall be designated in writing by the Attorneys-in-Fact for the Selling Shareholders. Notwithstanding anything contained herein to the contrary, if indemnity may be sought pursuant to Section 8(c) hereof in respect of such action or proceeding, then in addition to such separate firm for the indemnified parties, the indemnifying party shall be liable for the reasonable fees and expenses of not more than one separate firm (in addition to any local counsel) for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in its capacity as a "qualified independent underwriter' and all persons, if any, who control ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such actionsconsent or if there be a final judgment for the plaintiff, suitsthe indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, investigationsif at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, proceedings 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 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or claims that may be made against an Indemnified Party and/or its Personnel)threatened proceeding in respect of which any indemnified party is a party and indemnity could have been sought hereunder by such indemnified party, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is settlement includes an unconditional release of such indemnified party from all liability on claims that are the result subject matter of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnelsuch proceeding.
(bf) If To the extent the indemnification provided for any reason the foregoing indemnification in Section 8(a), 8(b), 8(c) or 8(d) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 8(f)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 8(f)(i) above but also the relative fault of the Company indemnifying party or parties on the one hand and of the Indemnified Party and/or its Personnelindemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that . The relative benefits received by the Company shallSellers on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by each Seller and the total underwriting discounts and commissions received by the Underwriters, in any eventeach case as set forth in the table on the cover of the Prospectus, contribute bear to the aggregate Public Offering Price of the Shares. The relative fault of the Sellers on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Sellers or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters' respective obligations to contribute pursuant to this Section 8 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint.
(g) The Sellers and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 8 were determined by PRO RATA allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(f). The amount paid or payable by the Indemnified Party and/or its Personnel an indemnified party as a result of such expensethe losses, lossclaims, claimdamages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, damage or liabilitysubject to the limitations set forth above, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify expenses reasonably incurred by such indemnified party in connection therewith with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, [(i)] no Underwriter shall be required to respond contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to procedures designed the public were offered to discover information regarding, in connection with, or the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue [statement or omission or alleged omission and (ii) no Selling Shareholder, other than Beacon, shall be required to contribute any amount in excess of the performance amount by which the net proceeds received from the sale of professional services rendered the Shares by such Selling Shareholder exceeds the amount of damages that such Selling Shareholder has otherwise been required to the Company pay by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses reason of such counsel as well as untrue or alleged untrue] statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewithmeaning of Section 11(f) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its PersonnelSecurities Act) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occurentitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 8 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.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(eh) The indemnity and contribution obligations of provisions contained in this Section 8 and the Company shall be in addition to any liability which the Company may otherwise haverepresentations, shall extend upon the same terms warranties and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives other statements of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under Selling Shareholders contained in this Agreement and/or the shall remain operative and in full force and effect regardless of (i) any termination of this Agreement.
, (fii) With respect to any party who may be indemnified investigation made by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and or on behalf of such personany Underwriter or any person controlling any Underwriter, any Selling Shareholder or any person controlling any Selling Shareholder, or the Company, its officers or directors or any person controlling the Company and (i) acceptance of and payment for any of the Shares.
Appears in 1 contract
Sources: Underwriting Agreement (Generac Portable Products Inc)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (collectivelythe "EXCHANGE ACT"), the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Underwriter within the directorsmeaning of Rule 405 under the Securities Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 7(a) hereof.
(b) If for Each Selling Stockholder agrees, severally and not jointly, to indemnify and hold harmless the Company, the other Selling Stockholders, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each Underwriter, each person, if any, who controls any reason Underwriter within the foregoing indemnification is unavailable to an Indemnified Party meaning of either Section 15 of the Securities Act or its Personnel Section 20 of the Exchange Act, and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or insufficient to hold an Indemnified Party other expenses reasonably incurred in connection with defending or its Personnel harmlessinvestigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, then any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall contribute have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Selling Stockholder furnished in writing by or on behalf of such Selling Stockholder expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto; and provided, further, that liability of such Selling Stockholder under this Section 9(b) shall be limited to an amount equal to the amount paid or payable by an Indemnified Party and/or its Personnel as a result of net proceeds to such expense, loss, claim, damage or liability in such proportion as is appropriate to reflect not only Selling Stockholder from the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault sale of the Company and the Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable Shares sold by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to Selling Stockholder under this Agreement.
(c) The Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Stockholders, the directors of the Company, the officers of the Company agrees that who sign the Registration Statement and each person, if any, who controls the Company or any Selling Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company and Selling Stockholder to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(d) In case any legal proceeding (including any governmental investigation) shall be brought instituted involving any person in respect of which indemnity may be sought pursuant to Sections 9(a), 9(b) or 9(c), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the Company and/or an "INDEMNIFYING PARTY") in writing and the Indemnifying Party, upon request of the Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authorityParty, either domestic or foreign, or shall investigate the Company and/or retain counsel reasonably satisfactory to the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by represent the Indemnified Party and/or its Personneland any others the Indemnifying Party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, the any Indemnified Party shall have the right to employ retain its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and but the fees and expenses of such counsel as well as shall be at the costs expense of such Indemnified Party unless (including an amount to reimburse i) the Indemnifying Party and the Indemnified Party for time spent by it and its Personnel in connection therewithshall have mutually agreed to the retention of such counsel or (ii) at their per diem rates unless the named parties to any such proceeding has been caused solely by or is (including any impleaded parties) include both the result of the gross negligence or fraud of Indemnifying Party and the Indemnified Party (or any and representation of its Personnel) and out-of-pocket expenses incurred both parties by the Indemnified same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the Indemnifying Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigationnot, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or legal expenses of any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and in connection with any proceeding or related proceedings in the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; providedsame jurisdiction, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement (i) the fees and expenses of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own more than one separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
firm (e) The indemnity and contribution obligations of the Company shall be in addition to any liability which local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company may otherwise havewithin the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Selling Stockholders and all persons, shall extend upon if any, who control any Selling Stockholder within the same terms meaning of either such Section, and conditions to the Indemnified Parties that all such fees and its Personnel who are not signatories to this Agreement and expenses shall be binding upon and enure to reimbursed as they are incurred. In the benefit case of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall obtain and hold the rights and benefits of this indemnity be designated in trust for and on behalf of such person.writing by Morgan Stanley & Co.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall Company, and the Founder, jointly and severally, agree to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “Personnel”) harmless "Exchange Act"), from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, liabilities without limitation, any legal or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Company by the Indemnified Party and its Personnel or otherwise other expenses reasonably incurred in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of defending or investigating any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened claim) caused by any untrue statement or brought against an Indemnified Party and/or its Personnel.
alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (b) If for any reason the foregoing indemnification is unavailable to an Indemnified Party as amended or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmless, then supplemented if the Company shall contribute to the amount paid have furnished any amendments or payable by an Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage supplements thereto) or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault of the Company and the Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel caused by any governmental commission omission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is alleged omission to state therein a material fact required to testify in connection therewith be stated therein or shall be required necessary to respond make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to procedures designed any Underwriter furnished to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceedingUnderwriter through you expressly for use therein; provided, however however, that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The foregoing indemnity and contribution obligations of the Company shall be in addition agreement with respect to any liability which the Company may otherwise have, preliminary prospectus shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure inure to the benefit of any successorsUnderwriter, assignsor any person controlling such Underwriter, heirs from whom the person asserting any such losses, claims, damages or liabilities purchased Shares, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and personal representatives if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities. Notwithstanding the foregoing provisions of this paragraph (a), each Underwriter agrees with the Company and the Indemnified Parties Founder that any claim for indemnity (including a claim for reimbursement of expenses) pursuant to this Section 9(a) or for breach of any representations and its Personnel. The foregoing provisions warranties under Section 2B shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect first be sought by such Underwriter to any party who may be indemnified satisfied in full by the above indemnity is not a party Company and, subject to this Agreementthe limitation on the aggregate liability of the Founder set forth below, shall only then be satisfied by the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf of such person.Founder only to the
Appears in 1 contract
Indemnity and Contribution. (a) The Each of the Company shall and the Trust jointly and severally agrees to indemnify and hold harmless the Underwriters, each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Initial Purchaser and each person, if any, who controls the Initial Purchaser within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties (the “Personnel”) harmless Exchange Act, from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in either Memorandum (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon information relating to the performance of professional services rendered Initial Purchaser furnished to the Company and the Trust in writing by the Indemnified Party and its Personnel or otherwise in connection with Initial Purchaser expressly for use therein; provided, that the matters referred to indemnification contained in this Agreement paragraph (including a) with respect to the aggregate amount paid in reasonable settlement Preliminary Memorandum shall not inure to the benefit of the Initial Purchaser (or to the benefit of any person controlling the Initial Purchaser) on account of any such actionsloss, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, actiondamage, suitjudgment, investigation liability or proceeding has been caused solely by or is expense arising from the result sale of the gross negligenceConvertible Preferred Securities by the Initial Purchaser to any person if the untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in the Preliminary Memorandum was corrected in the Final Memorandum and the Initial Purchaser sold Convertible Preferred Securities to that person without sending or giving, wilful misconduct at or fraud prior to the written confirmation of such sale, a copy of the Indemnified Party Final Memorandum (as then amended or its Personnel. Without limiting supplemented) if the generality of Company or the foregoing, this indemnity shall apply Trust had previously furnished sufficient copies thereof to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as Initial Purchaser on a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personneltimely basis.
(b) If The Initial Purchaser agrees to indemnify and hold harmless the Trust, the FMFT Trustees, the Company, its directors, its officers and each person, if any, who controls the Trust or the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company and the Trust to the Initial Purchaser, but only with reference to information relating to the Initial Purchaser furnished to the Company and the Trust in writing by the Initial Purchaser expressly for use in either Memorandum or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by Morg▇▇ ▇▇▇n▇▇▇ & ▇o. Incorporated, in the case of parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Trust on the one hand and the Initial Purchaser on the other hand from the offering of the Convertible Preferred Securities or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 8(d)(i) above but also the relative fault of the Company and the Indemnified Party and/or its PersonnelTrust on the one hand and of the Initial Purchaser on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees . The relative benefits received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that and the Trust on the one hand and the Initial Purchaser on the other hand in case any legal proceeding connection with the offering of the Convertible Preferred Securities shall be brought against deemed to be in the same respective proportions as the net proceeds from the offering of the Convertible Preferred Securities (before deducting expenses) received by the Trust and the total discounts and commissions received by the Initial Purchaser, in each case as set forth in the Final Memorandum, bear to the aggregate offering price of the Convertible Preferred Securities. The relative fault of the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or and the Trust on the one hand and of the Initial Purchaser on the other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or hand shall be required determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to respond state a material fact relates to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid supplied by the Company as they occur.
(d) Promptly after receipt of notice of and the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel Trust or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself Initial Purchaser and the Indemnifying Parties and/or its Personnel be entitled (but not required) parties' relative intent, knowledge, access to assume the defence of any suit brought information and opportunity to enforce correct or prevent such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counselstatement or omission.
(e) The Company, the Trust and the Initial Purchaser agree that it would not be just or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, the Initial Purchaser shall not be required to contribute any amount in excess of the amount by which the total price at which the Convertible Preferred Securities resold by it in the initial placement of such Convertible Preferred Securities were offered to investors exceeds the amount of any damages that the Initial Purchaser 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 remedies provided for in this Section 8 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 obligations of provisions contained in this Section 8 and the Company shall be in addition to any liability which the Company may otherwise haverepresentations, shall extend upon the same terms warranties and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives other statements of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under Trust contained in this Agreement and/or the shall remain operative and in full force and effect regardless of (i) any termination of this Agreement.
, (fii) With respect to any party who may be indemnified investigation made by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and or on behalf of such personthe Initial Purchaser or any person controlling the Initial Purchaser or by or on behalf of the Trust, the FMFT Trustees, the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Convertible Preferred Securities.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold harmless the UnderwritersInitial Purchaser, each person, if any, who controls the Initial Purchaser within the meaning of their subsidiaries and affiliates (collectivelyeither Section 15 of the Securities Act or Section 20 of the Exchange Act, the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of the directors, officers, employees, shareholders, unitholders, advisors and agents Initial Purchaser within the meaning of Rule 405 under the Indemnified Parties (the “Personnel”) harmless Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Memorandum (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon information relating to the performance of professional services rendered Initial Purchaser furnished to the Company in writing by the Indemnified Party and its Personnel or otherwise in connection with Initial Purchaser expressly for use therein; provided that the matters referred foregoing indemnity shall not inure to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of the Initial Purchaser from whom the person asserting any such actionsloss, suitsclaims, investigationsdamages or liabilities purchased Securities or Underlying Securities, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling the Initial Purchaser, if a copy of the Memorandum (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of the Initial Purchaser to such person, if required by law to have been so delivered, at or prior to the written confirmation of the sale of the Securities or Underlying Securities to such person, and if the Memorandum (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 6(a) hereof.
(b) If The Initial Purchaser agrees to indemnify and hold harmless the Company, its directors, its officers and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to the Initial Purchaser, but only with reference to information relating to such Initial Purchaser furnished to the Company in writing by the Initial Purchaser expressly for use in the Memorandum or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel at its standard non-premium rates) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, in the case of parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment that is indemnifiable pursuant to Section 8(a) or 8(b), as the foregoing case may be. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Initial Purchaser on the other hand from the offering of the Securities or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative fault of the Company on the one hand and of the Initial Purchaser on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Initial Purchaser on the other hand but also in connection with the offering of the Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Securities (before deducting expenses) received by the Company and the total discounts and commissions received by the Initial Purchaser bear to the aggregate offering price of the Securities. The relative fault of the Company on the one hand and the Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by Initial Purchaser on the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding other hand shall be brought against determined by reference to, among other things, whether the Company and/or an Indemnified Party and/or its Personnel by any governmental commission untrue or regulatory authority alleged untrue statement of a material fact or any stock exchange the omission or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required alleged omission to testify in connection therewith or shall be required state a material fact relates to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid supplied by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself Initial Purchaser and the Indemnifying Parties and/or its Personnel be entitled (but not required) parties’ relative intent, knowledge, access to assume the defence of any suit brought information and opportunity to enforce correct or prevent such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counselstatement or omission.
(e) The Company and the Initial Purchaser agree that it would not be just or equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, the Initial Purchaser shall not be required to contribute any amount in excess of the amount by which the total price at which the Securities resold by it in the initial placement of such Securities were offered to investors exceeds the amount of any damages that the Initial Purchaser 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 remedies provided for in this Section 8 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 obligations of provisions contained in this Section 8 and the Company shall be in addition to any liability which the Company may otherwise haverepresentations, shall extend upon the same terms warranties and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives other statements of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under Initial Purchaser contained in this Agreement and/or the shall remain operative and in full force and effect regardless of (i) any termination of this Agreement.
, (fii) With respect to any party who may be indemnified investigation made by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and or on behalf of such personthe Initial Purchaser, any person controlling the Initial Purchaser or any affiliate of the Initial Purchaser or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Securities.
Appears in 1 contract
Sources: Purchase Agreement (Durect Corp)
Indemnity and Contribution. (a) The Company shall REIT and the Operating Partnership, jointly and severally, agree to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties (the “Personnel”) harmless Exchange Act, from and against any and all expenses, losses (other than loss of profits), feeslosses, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations liabilities and expenses (including, without limitation, any legal or liabilitiesother expenses reasonably incurred in connection with defending or investigating any such action or claim) arising out of or caused by (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, whether joint any preliminary prospectus or several, the Prospectus (as amended or supplemented if the REIT and the reasonable fees Operating Partnership shall have furnished any amendments or supplements thereto) or in any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, or in any application or other document executed by or on behalf of the Company or based on written information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify the Shares under the securities or blue sky laws thereof or filed with the Commission, or (ii) any omission or alleged omission to state in such document a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damage, liabilities or expenses of their counselare caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the REIT and the Operating Partnership in writing by such Underwriter through you expressly for use therein and set forth in Exhibit A hereof; provided, however, that may be incurred in advising the foregoing indemnity agreement with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings preliminary prospectus shall not inure to which the benefit of any Indemnified Party and/or its Personnel may become subject or otherwise involved in Underwriter from whom the person asserting any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damages, liabilities or actions arise out expenses purchased Shares, or any person controlling such Underwriter, if a copy of the Prospectus (as then amended or are basedsupplemented if the REIT and the Operating Partnership shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, directly if required by law so to have been delivered, at or indirectly, upon the performance of professional services rendered prior to the Company by written confirmation of the Indemnified Party sale of the Shares to such person, and its Personnel if the Prospectus (as so amended or otherwise in connection with supplemented) would have cured the matters referred defect giving rise to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actionslosses, suitsclaims, investigationsdamages, proceedings liabilities or claims that may be made against an Indemnified Party and/or its Personnel)expenses, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of REIT and the Indemnified Party or its PersonnelOperating Partnership with Section 6(b) hereof. Without limiting the generality of the foregoing, this This indemnity shall apply agreement will be in addition to all expenses (including reasonable legal expenses), losses, claims and liabilities any liability that the Indemnified Parties and/or their Personnel may incur as a result of any action REIT or litigation that may be threatened or brought against an Indemnified Party and/or its Personnelthe Operating Partnership might otherwise have.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the REIT, the Operating Partnership and the REIT's directors, its officers who sign the Registration Statement and each person, if any, who controls the REIT or the Operating Partnership within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnities from the REIT and the Operating Partnership to such Underwriter, but only with reference to information relating to such Underwriter furnished to the REIT in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, and as set forth in Exhibit A hereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, in the case of parties indemnified pursuant to Section 7(a), and by the REIT or the Operating Partnership, in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party in writing to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of each indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the REIT and the Operating Partnership on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause (i) above but also the relative fault of the Company REIT and the Indemnified Party and/or its PersonnelOperating Partnership on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees . The relative benefits received by the Indemnified Party REIT and the Operating Partnership on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the REIT and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the REIT and the Operating Partnership on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the REIT or the Operating Partnership or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 7 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Shares they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity REIT, the Operating Partnership and the Underwriters agree that it would not be just or equitable if contribution obligations pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the Company equitable considerations referred to in Section 7(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in addition connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreementindemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 7 and the representations, warranties and other statements of the REIT and the Operating Partnership contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter or any person controlling any Underwriter or by or on behalf of the REIT, the Operating Partnership or the REIT's officers or directors or any person controlling the REIT or the Operating Partnership and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Indemnity and Contribution. (a) The Each of the Company shall and the Subsidiary Guarantor agrees to indemnify and hold the Underwritersharmless each Holder of Transfer Restricted Securities named in any Shelf Registration Statement (including, each of their subsidiaries and affiliates (collectivelywithout limitation, the “Indemnified Parties” and individuallyInitial Purchasers), an “Indemnified Party”) and each person, if any, who controls any such Holder within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Exchange Act (the collectively referred to for purposes of this Section 5 as a “PersonnelHolder”) harmless ), from and against any and all expenses, losses (other than loss of profits), feeslosses, claims, actions damages and liabilities (including shareholder actionswithout limitation the reasonable legal fees and other expenses incurred in connection with any suit, derivative actions action or otherwiseproceeding or any claim asserted) caused by any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement, or in any Prospectus, or any amendment thereof or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary, in the case of any Prospectus in light of the circumstances under which they were made, to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with information relating to any Holder furnished to the Company in writing by such Holder expressly for use therein; provided that the foregoing indemnity with respect to any Shelf Registration Statement, or any Prospectus, shall not inure to the benefit of any Holder (or the benefit of any person controlling such Holder) from whom the person asserting any such losses, claims, damages or liabilities purchased the securities concerned, to the extent that any such loss, claim, damage or liability of the Holders occurs under the circumstance where it shall have been established that (w) the Company had previously furnished copies of the Prospectus, and any amendments and supplements thereto, to the Holder (to the extent such Holder has previously requested such copies), damages, obligations or liabilities, whether joint or several(x) delivery of the Prospectus, and any amendment or supplements thereto, was required by the Securities Act to be made to such person, (y) the untrue statement or omission of a material fact was corrected in the Prospectus or amendments or supplements thereto, and (z) there was not sent or given to such person, at or prior to the written confirmation of the sale of such securities to such person, a copy of such Prospectus or amendments or supplements thereto.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company, the Subsidiary Guarantor, the directors and officers of each of the Company and the Subsidiary Guarantor and each person who controls the Company or the Subsidiary Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, to the same extent as the foregoing indemnity from the Company and the Subsidiary Guarantor to the Holders, but only with reference to information relating to such Holder furnished to the Company in writing by such Holder expressly for use in the Shelf Registration Statement, or in any Prospectus, or any amendment or supplement thereto.
(c) If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnity may be sought pursuant to either of the two preceding paragraphs, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Person”) in writing, and the Indemnifying Person, upon request of the Indemnified Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others the Indemnifying Person may designate in such proceeding and shall pay the reasonable fees and expenses of their such counsel related to such proceeding. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, that may but the fees and expenses of such counsel shall be incurred at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary, (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person or (iii) the named parties in advising with respect any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to and/or defending any actual or potential differing interests between them. It is understood that the Indemnifying Person shall 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 firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such separate firm for the Holders and such control persons of the Holders shall be designated in writing by the Initial Purchasers and any such separate firm for the Company and the Subsidiary Guarantors, the directors and officers of each of the Company and the Subsidiary Guarantor and such control persons of the Company and the Subsidiary Guarantor shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any pending or threatened claimsproceeding effected without its prior written consent, actionsbut if settled with such consent or if there be a final judgment for the plaintiff, suitsthe Indemnifying Person agrees to indemnify in accordance with Section 5(a) or 5(b) above, investigations as the case may be, any Indemnified Person from and against any loss or proceedings to liability by reason of such settlement or judgment. No Indemnifying Person shall, without the prior written consent of the Indemnified Person, effect any settlement of any pending proceeding in respect of which any Indemnified Party and/or its Personnel may become subject Person is a party or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damages, liabilities or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Company by the Indemnified Party and its Personnel or otherwise in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any threatened proceeding in respect of which any Indemnified Person could have been a party and indemnity could have been sought hereunder by such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)Person, unless such actual or threatened claim, action, suit, investigation or settlement includes an unconditional release of such Indemnified Person from all liability on claims that are the subject matter of such proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the on terms reasonably satisfactory to such Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelPerson.
(d) If the indemnification provided for in paragraph (a) or (b) If for any reason the foregoing indemnification of this Section 5 is unavailable to an Indemnified Party or its Personnel Person or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by an such Indemnified Party and/or its Personnel Person as a result of such expenselosses, lossclaims, claimdamages or liabilities (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 Holder on the other hand with respect to the sale by such Holder of Securities or Common Stock or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause (i) above but also the relative fault of the Company and the Indemnified Party and/or its PersonnelSubsidiary Guarantor on the one hand and of such Holder on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees . Benefits received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding and the Subsidiary Guarantor shall be brought against deemed to be equal to the total net proceeds from the Initial Placement (before deducting expenses). Benefits received by the Initial Purchasers shall be deemed to be equal to the total purchase discounts and commissions received by the Initial Purchasers in the Initial Placement, and benefits received by any other Holders shall be deemed to be equal to the value of receiving Securities registered under the Securities Act. Benefits received by any underwriter shall be deemed to be equal to the total underwriting discounts and commissions, as set forth on the cover page of the Prospectus forming a part of the Shelf Registration Statement which resulted in such losses, claims, damages or liabilities. The relative fault of the Company and/or an Indemnified Party and/or its Personnel and the Subsidiary Guarantor on the one hand and such Holder on the other shall be determined by reference to, among other things, whether any governmental commission or regulatory authority untrue or any stock exchange alleged untrue statement of a material fact or other entity having regulatory authority, either domestic the omission or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required alleged omission to testify in connection therewith or shall be required state a material fact relates to respond to procedures designed to discover information regarding, in connection with, or supplied by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (Subsidiary Guarantor or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself such Holder and the Indemnifying Parties and/or its Personnel be entitled (but not required) parties’ relevant intent, knowledge, information and opportunity to assume the defence of any suit brought to enforce correct or prevent such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counselstatement or omission.
(e) The Company, the Subsidiary Guarantor and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 5 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) of this Section 5. The amount paid or payable by an Indemnified Person as a result of losses, claims, damages and liabilities referred to in paragraph (d) of this Section 5 shall be deemed to include, subject to the limitations set forth above, any reasonable legal or other expenses incurred by such Indemnified Person not otherwise reimbursed in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5, in no event shall any Holder be required to contribute any amount in excess of the amount by which the total amount received by such Holder with respect to its sale of Transfer Restricted Securities pursuant to a Shelf Registration Statement exceeds the amount of any damages that such 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.
(f) The remedies provided for in this Section 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.
(g) The indemnity and contribution obligations agreements contained in this Section 5 shall remain operative and in full force and effect regardless of the Company shall be in addition to (i) any liability which the Company may otherwise havetermination of this Agreement, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit (ii) any investigation made by or on behalf of any successors, assigns, heirs and personal representatives Holder or any person controlling any Holder or by or on behalf of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this AgreementSubsidiary Guarantor, the Underwriters shall obtain officers or directors of each of the Company and hold the rights Subsidiary Guarantor or any other person controlling the Company or the Subsidiary Guarantor and benefits (iii) the sale by a Holder of this indemnity in trust for and on behalf of such personTransfer Restricted Securities covered by a Shelf Registration Statement.
Appears in 1 contract
Sources: Registration Rights Agreement (Ryerson Tull Inc /De/)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectivelyeither Section 15 of the Securities Act or Section 20 of the Exchange Act, the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Underwriter within the directors, officers, employees, shareholders, unitholders, advisors and agents meaning of Rule 405 under the Indemnified Parties (the “Personnel”) harmless Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (if used within the period set forth in paragraph (c) of Section 7 hereof and as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter or any affiliate of such Underwriter within the meaning of Rule 405 of the Securities Act, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendment or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage or liability, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud Company in furnishing copies of the Indemnified Party Prospectus (or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply amendments or supplements thereto) pursuant to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelSection 7(a) hereof.
(b) If The Selling Stockholder agrees to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (if used within the period set forth in paragraph (c) of Section 7 hereof and as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to the Selling Stockholder Information; provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Shares, or any person controlling such Underwriter or any affiliate of such Underwriter within the meaning of Rule 405 of the Securities Act, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendment or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage or liability, unless such failure is the result of noncompliance by the Company in furnishing copies of the Prospectus (or amendments or supplements thereto) pursuant to Section 7(a) hereof. The liability of the Selling Stockholder under the indemnity agreement contained in this paragraph shall be limited to an amount equal to the aggregate Public Offering Price of the Shares sold by the Selling Stockholder under this Agreement.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Stockholder, the directors and officers of the Company and Selling Stockholder who sign the Registration Statement and each person, if any, who controls the Company or the Selling Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Selling Stockholder and all persons, if any, who controls the Selling Stockholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by the Underwriters. In the case of any such separate firm for the Company and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Stockholder and such control persons of the Selling Stockholder, such firm shall be designated in writing by the Selling Stockholder. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the foregoing prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a), 9(b) or 9(c) is unavailable to an Indemnified Party indemnified party in respect of any losses, claims, damages or its Personnel or insufficient liabilities referred to hold an Indemnified Party or its Personnel harmlessunder such paragraph, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) if the indemnifying party is the Company or the Selling Stockholder, damage in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or liability parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares, (ii) if the indemnifying person is an Underwriter, in such proportion as is appropriate to reflect the relative fault of such Underwriter on the one hand and the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities or (iii) if the allocation provided by clause 9(e)(i) or 9(e)(ii) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 9(e)(i) above or the relative fault referred to in clause 9(e)(ii) but also the relative fault (in cases covered by clause 9(e)(i)) or such relative benefits (in cases covered by clause 9(e)(ii)) of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company or the Selling Stockholder on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Selling Stockholder and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company or the Selling Stockholder on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to or the amount paid Selling Stockholder or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters’ respective obligations to contribute pursuant to this Agreement.
(c) Section 9 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. The Company agrees that liability of the Selling Stockholder under the contribution agreement contained in case any legal proceeding this paragraph shall be brought against limited to an amount equal to the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason aggregate Public Offering Price of the performance of professional services rendered to the Company Shares sold by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered Selling Stockholder under this Agreement and/or the termination of this Agreement.
(f) With respect The Company, the Selling Stockholder and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party who may be indemnified by at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 9 and the above indemnity is not a party to representations, warranties and other statements of the Company and the Selling Stockholder contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, by or on behalf of the Selling Stockholder or any person controlling the Selling Stockholder, or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (collectivelythe "EXCHANGE ACT"), the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Underwriter within the directorsmeaning of Rule 405 under the Securities Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), feeslosses, claims, actions damages and liabilities (including shareholder actionsincluding, derivative actions without limitation, any legal or otherwiseother expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), damagesor caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, obligations except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein, provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Shares, any person controlling such Underwriter, or any affiliate of such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, whether joint unless such failure is the result of noncompliance by the Company with Section 6(a) hereof. The Company also agrees to indemnify and hold harmless ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and each person, if any, who controls ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ within the meaning of either Section 15 of the Securities Act, or severalSection 20 of the Exchange Act, from and the reasonable fees against any and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, all losses, claims, damages, liabilities or actions arise out and judgments incurred as a result of or are based, directly or indirectly, upon ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ participation as a "qualified independent underwriter" within the performance meaning of professional services rendered to Rule 2720 of the Company by the Indemnified Party and its Personnel or otherwise National Association of Securities Dealers' Conduct Rules in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result offering of the gross negligenceShares of Common Stock, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), except for any losses, claims claims, damages, liabilities, and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action judgments resulting from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇, or litigation that may be threatened or brought against an Indemnified Party and/or its Personnelsuch controlling person's, willful misconduct.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in the case of parties indemnified pursuant to Section 7(a), and by the Company, in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement (other than reimbursement for fees and expenses that the indemnifying party is contesting in good faith). No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding. Notwithstanding anything contained herein to the contrary, if indemnity may be sought pursuant to Section 7(a) hereof in respect of such action or proceeding, then in addition to such separate firm for the indemnified parties, the indemnifying party shall be liable for the reasonable fees and expenses of not more than one separate firm (in addition to any local counsel) for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in its capacity as a "qualified independent underwriter" and all persons, if any, who control ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act; provided, that, the retention of such counsel meets the conditions set forth in clauses (i) or (ii) of the second sentence of this Section 7(c).
(d) To the extent the indemnification provided for in Section 7(a) or 7(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 7(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 7(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 7 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Shares they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelUnderwriters agree that it would not be just or equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 7(d). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 7 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or directors, or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) and each of the directors, officers, employees, shareholders, unitholders, advisors employees and agents of each Underwriter and each person, if any, who controls any Underwriter within the Indemnified Parties meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (the “Personnel”) harmless "EXCHANGE ACT"), from and against any and all expenses, losses (other than loss of profits), feeslosses, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or damages and liabilities, whether joint or several, and the reasonable fees and (including, without limitation, any legal or other expenses of their counsel, that may be reasonably incurred in advising connection with respect to and/or defending or investigating any actual such action or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damages, liabilities or actions claim) that arise out of or are basedbased upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, directly any preliminary prospectus or indirectlythe Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or that arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the performance of professional services rendered statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity, with respect to any preliminary prospectus, shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of the Prospectus was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of Company with Section 6(a) hereof. This indemnity agreement will be in addition to any liability which the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel Company may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnelotherwise have.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (iii) the indemnifying party shall not have retained counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such proceeding. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., in the case of parties indemnified pursuant to Section 7(a), and by the Company in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the foregoing prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 7(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 7(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 7 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Shares they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity Company and the Underwriters agree that it would not be just or equitable if contribution obligations pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 7(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each director, officer, employee and agent of an Underwriter and each person who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions to the Indemnified Parties of paragraphs (d) and its Personnel who (e) of this Section 7. The remedies provided for in this Section 7 are not signatories to this Agreement exclusive and shall not limit any rights or remedies which may otherwise be binding upon and enure available to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreementindemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 7 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter or any person controlling any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Sources: Underwriting Agreement (Genuity Inc)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Initial Purchaser, each person, if any, who controls any Initial Purchaser within the meaning of their subsidiaries and affiliates (collectivelyeither Section 15 of the Securities Act or Section 20 of the Exchange Act, the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Initial Purchaser within the directors, officers, employees, shareholders, unitholders, advisors and agents meaning of Rule 405 under the Indemnified Parties (the “Personnel”) harmless Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Memorandum (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, except that this indemnity agreement shall not apply insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Initial Purchaser furnished to the Company in writing by such Initial Purchaser through you expressly for use therein; provided, however, that the Company shall not be liable to any Initial Purchaser under this indemnity agreement with respect to any Preliminary Memorandum to the extent that any such loss, claim, damage or liability of such Initial Purchaser results from the fact that such Initial Purchaser sold Debentures to a person as to whom it shall be established that there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Final Memorandum as then amended or supplemented in any case where such delivery is required by the Indemnified Party Securities Act if the Company has previously furnished copies thereof in sufficient quantity to such Initial Purchaser and its Personnel or otherwise in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actionsloss, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation damage or proceeding has been caused solely by liability of such Initial Purchaser results from an untrue statement or is omission or a material fact contained in the result of Preliminary Memorandum which was identified in writing at such time to such Initial Purchaser and corrected in the gross negligence, wilful misconduct Final Memorandum as then amended or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnelsupplemented.
(b) If Each Initial Purchaser agrees, severally and not jointly, to indemnify and hold harmless the Company its directors, officers and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Initial Purchaser, but only with reference to information relating to such Initial Purchaser furnished to the Company in writing by such Initial Purchaser through you expressly for use in the Memorandum or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Representatives, in the case of parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Initial Purchasers on the other hand from the offering of the Securities or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative fault of the Company on the one hand and of the Initial Purchasers on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Initial Purchasers on the other hand but also in connection with the offering of the Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Securities (before deducting expenses) received by the Company and the total discounts and commissions received by the Initial Purchasers, in each case as set forth in the Memorandum, bear to the aggregate offering price of the Securities. The relative fault of the Company on the one hand and of the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Initial Purchasers and the Indemnified Party and/or its Personnelparties’ relative intent, as well as any relevant equitable considerations; provided that the Company shallknowledge, in any event, access to information and opportunity to correct or prevent such statement or omission. The Initial Purchasers’ respective obligations to contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that Section 8 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective principal amount of Securities they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelInitial Purchasers agree that it would not be just or equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(d). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 8, no Initial Purchaser shall be required to contribute any amount in excess of the amount by which the total price at which the Securities resold by it in the initial placement of such Securities were offered to investors exceeds the amount of any damages that such Initial Purchaser 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 remedies provided for in this Section 8 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) With respect to The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Initial Purchaser, any person controlling any Initial Purchaser or any affiliate of any Initial Purchaser or by or on behalf of the Company, its officers, directors or any person controlling the Company and (iii) acceptance of and payment for any of the Securities.
Appears in 1 contract
Sources: Purchase Agreement (Commscope Inc)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (collectivelythe "EXCHANGE ACT"), the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Underwriter within the directorsmeaning of Rule 405 under the Securities Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings any person controlling such Underwriter, or claims that may be made against an Indemnified Party and/or its Personnel)any affiliate of such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 6(a) hereof.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing jointly by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated in the case of parties indemnified pursuant to Section 7(a), and by the Company, in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement (other than reimbursement for fees and expenses that the indemnifying party is contesting in good faith). No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 7(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 7(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 7 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Shares they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelUnderwriters agree that it would not be just or equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 7(d). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 7 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or directors of any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Sources: Underwriting Agreement (Eyetech Pharmaceuticals Inc)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (collectivelythe "EXCHANGE ACT"), the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Underwriter within the directorsmeaning of Rule 405 under the Securities Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by the Indemnified Party and its Personnel or otherwise in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelUnderwriter through you expressly for use therein.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. 14 Incorporated, in the case of parties indemnified pursuant to Section 7(a), and by the Company, in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 7(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 7(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 7 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Shares they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelUnderwriters agree that it would not be just or equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 7(d). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 7 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Indemnity and Contribution. (a) The Indemnification of the Underwriters. Each of the Company shall and Mr. ▇▇▇▇▇▇ ▇. C▇▇▇▇▇▇▇▇, ▇▇., ▇▇rees, jointly and severally, to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties (the “Personnel”) harmless Exchange Act, from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except (i) insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein and (ii) that with respect to any preliminary prospectus, the Indemnified Party and its Personnel or otherwise in connection with foregoing indemnity agreement shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is Underwriter from whom the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of person asserting any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnel.
(b) If for any reason the foregoing indemnification is unavailable to an Indemnified Party or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmless, then the Company shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability in purchased Shares, or any person controlling such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault Underwriter, if copies of the Company and the Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided that the Company shall, in any event, contribute Prospectus were timely delivered to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf of such person.the
Appears in 1 contract
Sources: Underwriting Agreement (Cysive Inc)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (collectivelythe "EXCHANGE ACT"), the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Underwriter within the directorsmeaning of Rule 405 under the Securities Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 6(a) hereof.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by Morgan Stanley & Co. Incorporated, in the case of parties indemnified ▇▇▇▇▇▇▇t to Section 7(a), and by the Company, in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 7(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 7(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 7 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Shares they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelUnderwriters agree that it would not be just or equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 7(d). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 7 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall and LLC Holdings, jointly and severally, agree to indemnify and hold the Underwritersharmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of their subsidiaries and affiliates (collectively, either Section 15 of the “Indemnified Parties” and individually, an “Indemnified Party”) Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the directorsmeaning of Rule 405 under the Securities Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company or LLC Holdings shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims any person controlling such Underwriter, if it is established that may be made against an Indemnified Party and/or its Personnel), unless such actual a copy of the Prospectus (as then amended or threatened claim, action, suit, investigation supplemented if the Company shall have furnished any amendments or proceeding has been caused solely supplements thereto) was not sent or given by or is on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the result written confirmation of the gross negligence, wilful misconduct or fraud sale of the Indemnified Party Shares to such person, and if the Prospectus (as so amended or its Personnel. Without limiting supplemented) would have cured the generality of the foregoing, this indemnity shall apply defect giving rise to all expenses (including reasonable legal expenses), such losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action claims, damages or litigation that may be threatened or brought against an Indemnified Party and/or its Personnelliabilities.
(b) If The Selling Shareholder agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company or LLC Holdings shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating specifically to the Selling Shareholder, as set forth under the caption "Principal and Selling Stockholders" (including the notes thereto); provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting such losses, claims, damages or liabilities purchased Shares, or any person controlling such Underwriter, if it is established that a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities; provided, further, that with respect to any amount due an indemnified person under this paragraph (b), the Selling Shareholder shall be liable only to the extent of the net proceeds received by the Selling Shareholder from the sale of the Selling Shareholder's Shares.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company or LLC Holdings, as applicable, the Selling Shareholder, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or LLC Holdings or any Selling Shareholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company or LLC Holdings shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Selling Shareholder and all persons, if any, who control the Selling Shareholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Shareholder and such control persons of the Selling Shareholder, such firm shall be designated in writing by the Selling Shareholder. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a), 9(b) or 9(c) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 9(e)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 9(e)(i) above but also the relative fault of the Company indemnifying party or parties on the one hand and of the Indemnified Party and/or its Personnelindemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided . The relative benefits received by the Sellers on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by each Seller and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Sellers on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Sellers or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters' respective obligations to contribute pursuant to this Section 9 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. In no event shall the liability of the Selling Shareholder under this Section 9(e) exceed the amount that the Company shallSelling Shareholder would have been required to pay under Section 9(b) had such indemnification been held to be available thereunder.
(f) The Sellers, LLC Holdings and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in any event, contribute to the Section 9(e). The amount paid or payable by the Indemnified Party and/or its Personnel an indemnified party as a result of such expensethe losses, lossclaims, claimdamages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, damage or liabilitysubject to the limitations set forth above, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify expenses reasonably incurred by such indemnified party in connection therewith with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, no Underwriter shall be required to respond contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to procedures designed the public were offered to discover information regarding, in connection with, or the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the performance meaning of professional services rendered Section 11(f) of the Securities Act) shall be entitled to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses contribution from any person who was not guilty of such counsel as well as fraudulent misrepresentation. The remedies provided for in this Section 9 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. The provisions of this Section 9 shall not supersede or otherwise affect any agreement that the costs (including an amount Sellers may otherwise have with respect to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occurindemnification between them.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(eg) The indemnity and contribution obligations provisions contained in this Section 9 and the representations, warranties and other statements of the Company shall be Company, LLC Holdings and the Selling Shareholders contained in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement shall remain operative and shall be binding upon in full force and enure to the benefit effect regardless of (i) any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
, (fii) With respect to any party who may be indemnified investigation made by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and or on behalf of such personany Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, the Selling Shareholder or any person controlling the Selling Shareholder, or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties Securities Exchange Act of 1934, as amended (the “Personnel”) harmless "EXCHANGE ACT"), from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have made any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein, PROVIDED, that the Indemnified Party and its Personnel foregoing indemnity agreement with respect to any preliminary prospectus or otherwise in connection with the matters referred Prospectus shall not inure to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Securities, proceedings or claims that may be any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented, if the Company shall have made against an Indemnified Party and/or its Personnel)any amendments or supplements) was not sent or given by or on behalf of such Underwriter to such person, unless if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Securities to such actual person, and if the Prospectus (as so amended or threatened supplemented) would have cured the defect giving rise to such loss, claim, action, suit, investigation damage or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnelliability.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred upon receipt of reasonably detailed invoices thereof. Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, in the case of parties indemnified pursuant to Section 7(a), and by the Company, in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the foregoing prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Securities or (ii) if the allocation provided by clause 7(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 7(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Securities (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Securities. The relative fault of the Company on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 7 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective principal amounts of Securities they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelUnderwriters agree that it would not be just or equitable if contribution pursuant to this Section 7 were determined by PRO RATA allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 7(d). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 7 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter or any person controlling any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Securities.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold harmless the UnderwritersUnderwriter and each person, if any, who controls the Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of their subsidiaries and affiliates any Underwriter within the meaning of Rule 405 under the Securities Act (collectively, the “Indemnified Parties” and individuallyindemnified Underwriter parties”), an “Indemnified Party”) and each of the directors, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless Selling Shareholder from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon information relating to the performance of professional services rendered Underwriter furnished to the Company in writing by the Indemnified Party and its Personnel or otherwise in connection Underwriter expressly for use therein; provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including benefit of the aggregate amount paid in reasonable settlement of Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Shares, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling the Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of the Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless the failure to send or give such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or Prospectus is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 7(a) hereof.
(b) If Each Selling Shareholder agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each indemnified Underwriter party from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only with reference to information relating to such Selling Shareholder furnished in writing by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that the only such information furnished by any such Selling Shareholder consists of the information about such Selling Shareholder under the caption “Selling Shareholders” in the Prospectus; provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of the Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Shares, or any person controlling the Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of the Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless the failure to send or give such Prospectus is the result of noncompliance by the Company with Section 7(a) hereof. Notwithstanding the provisions of this Section 8(b), no Selling Shareholder shall be required to pay an amount in excess of the net proceeds received by such Selling Shareholder from the Shares sold by it hereunder.
(c) The Underwriter agrees to indemnify and hold harmless the Company, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each Selling Shareholder to the same extent as the foregoing indemnity from the Company to the Underwriter, but only with reference to information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a), 8(b) or 8(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless 1) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or 2) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Underwriter and all persons, if any, who control the Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of the Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Selling Shareholders and all persons, if any, who control any Selling Shareholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriter and such control persons and affiliates of the Underwriter, such firm shall be designated in writing by the Underwriter. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Shareholders and such control persons of any Selling Shareholders, such firm shall be designated in writing by the Selling Shareholders. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the foregoing prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 8(a), 8(b) or 8(c) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 8(e)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 8(e)(i) above but also the relative fault of the Company indemnifying party or parties on the one hand and of the Indemnified Party and/or its Personnelindemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that . The relative benefits received by the Company shalland the Selling Shareholders on the one hand and the Underwriter on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and each Selling Shareholder and the total underwriting discounts and commissions received by the Underwriter, in any eventeach case as set forth in the table on the cover of the Prospectus, contribute bear to the aggregate Public Offering Price of the Shares. (For the purposes of this Section 8(e), the benefit to the Company shall be deemed to be equal to the total net proceeds from the offering of the Shares (before deducting expenses)). The relative fault of the Company or the Selling Shareholders on the one hand and the Underwriter on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Selling Shareholders or by the Underwriter and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. Notwithstanding the provisions of this Section 8(e), no Selling Shareholder shall be required to pay an amount in excess of the net proceeds received by such Selling Shareholder from the Shares sold by it hereunder.
(f) The Company, the Selling Shareholders and the Underwriter agree that it would not be just or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(e). The amount paid or payable by the Indemnified Party and/or its Personnel an indemnified party as a result of such expensethe losses, lossclaims, claimdamages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, damage or liabilitysubject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, the Underwriter shall not be required to contribute any amount in excess of such the amount over by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that the fees received Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the Indemnified Party pursuant 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 remedies provided for in this AgreementSection 8 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.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(eg) The indemnity and contribution obligations of provisions contained in this Section 8 and the Company shall be in addition to any liability which the Company may otherwise haverepresentations, shall extend upon the same terms warranties and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives other statements of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under Selling Shareholders contained in this Agreement and/or the 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 the Underwriter or any person controlling the Underwriter or any affiliate of the Underwriter, any Selling Shareholder or any person controlling any Selling Shareholder or by or on behalf of the Company, the officers or directors of the Company or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
(fh) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits The provisions of this indemnity in trust Section shall not supersede or otherwise affect any agreement that the Company and the Selling Shareholders may otherwise have for and on behalf the allocation of such personindemnity and contribution matters among themselves.
Appears in 1 contract
Sources: Underwriting Agreement (Montpelier Re Holdings LTD)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) U.S. Underwriter and each person, if any, who is an affiliate of any U.S. Underwriter within the meaning of Rule 501(b) of Regulation D under the Securities Act and Rule 12b-2 of the directorsExchange Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred by any U.S. Underwriter or any such affiliate in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any related preliminary prospectus, the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or the ADS Registration Statement, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any U.S. Underwriter furnished to the Company in writing by such U.S. Underwriter through you expressly for use therein; provided, however, that such indemnity shall not inure to the Indemnified Party and its Personnel or otherwise in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any U.S. Underwriter if the person asserting any such actionsloss, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation damage or proceeding has been caused solely by liability did not receive a copy of a Prospectus (or is the result Prospectus as amended or supplemented) at or prior to the confirmation of the gross negligence, wilful misconduct or fraud sale of the Indemnified Party Shares to such Person in any case where such delivery would be required by law and the Company has furnished copies thereof to such U.S. Underwriter as required by Section 6(a) hereof and the untrue statement or its Personnel. Without limiting omission of a material fact contained in such preliminary Prospectus was corrected in the generality of Prospectus (or the foregoing, this indemnity shall apply to all expenses (including reasonable legal expensesProspectus as amended or supplemented), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnel.
(b) If Each U.S. Underwriter agrees, severally and not jointly, to indemnity and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred by the Company, such signatories or any such controlling person in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereof, any related preliminary prospectus, the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such U.S. Underwriter furnished to the Company in writing by such U.S. Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the U.S. Underwriters and such affiliates of any U.S. Underwriters, such firm shall be designated in writing by the Joint Global Coordinators and Joint Book-Runners. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the foregoing prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Offered ADSs or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative fault of the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel U.S. Underwriters on the other hand but also in connection with the offering of the Offered ADSs shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Offered ADSs (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the U.S. Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Offering ADSs. The relative fault of the Company Sellers on the one hand and the Indemnified Party and/or its PersonnelU.S. Underwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of U.S. Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The U.S. Underwriters' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 8 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Offering ADSs they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelU.S. Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the U.S. Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(d). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 8, no U.S. Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Offering ADSs underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such U.S. Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this section 8 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) With respect to The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personthe Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Offering ADSs.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwriters, each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) harmless ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and each person, if any, who controls ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties (Exchange Act and each affiliate of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ within the “Personnel”) harmless meaning of Rule 405 under the Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in either Memorandum (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ furnished to the Company in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ expressly for use therein; provided, however, that the Indemnified Party and its Personnel foregoing indemnity agreement with respect to any Preliminary Memorandum shall not inure to the benefit of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, or otherwise in connection with any person controlling ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or any affiliate of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, from whom the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased the Securities, proceedings if a copy of the Final Memorandum (as then amended or claims that may be made against an Indemnified Party and/or its Personnel)supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, controlling person or affiliate to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Securities to such person, and if the Final Memorandum (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 6(a) thereof.
(b) If ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ agrees to indemnify and hold harmless the Company, its directors, and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, but only with reference to information relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ furnished to the Company in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ expressly for use in either Memorandum or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, in the case of parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on the other hand from the offering of the Securities or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative fault of the Company on the one hand and of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on the other hand but also in connection with the offering of the Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Securities (before deducting expenses) received by the Company and the total discounts and commissions received by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, in each case as set forth in the Final Memorandum, bear to the aggregate offering price of the Securities. The relative fault of the Company on the one hand and of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on the Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding other hand shall be brought against determined by reference to, among other things, whether the Company and/or an Indemnified Party and/or its Personnel by any governmental commission untrue or regulatory authority alleged untrue statement of a material fact or any stock exchange the omission or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required alleged omission to testify in connection therewith or shall be required state a material fact relates to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid supplied by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the Indemnifying Parties and/or its Personnel be entitled (but not required) parties' relative intent, knowledge, access to assume the defence of any suit brought information and opportunity to enforce correct or prevent such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counselstatement or omission.
(e) The indemnity Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ agree that it would not be just or equitable if contribution obligations pursuant to this Section 8 were determined by pro rata allocation or by any other method of allocation that does not take account of the Company equitable considerations referred to in Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in addition connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall not be required to contribute any amount in excess of the amount by which the total price at which the Securities resold by it in the initial placement of such Securities were offered to investors exceeds the amount of any damages that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreementindemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such person▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or any person controlling ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or by or on behalf of the Company, its directors, or any person controlling the Company and (iii) acceptance of and payment for any of the Securities.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold the Underwritersharmless each Initial Purchaser, each person, if any, who controls any Initial Purchaser within the meaning of their subsidiaries and affiliates (collectivelyeither Section 15 of the Securities Act or Section 20 of the Exchange Act, the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any Initial Purchaser within the directors, officers, employees, shareholders, unitholders, advisors and agents meaning of Rule 405 under the Indemnified Parties (the “Personnel”) harmless Securities Act from and against any and all expenses, losses (other than loss of profits), feeslosses, claims, actions damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Memorandum, the Time of Sale Memorandum or any amendment or supplement thereto, any Additional Written Offering Communication prepared by or on behalf of, used by, or referred to by the Company, any road show or the Final Memorandum or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Initial Purchaser furnished to the Company in writing by such Initial Purchaser through the Representatives expressly for use therein. The Company agrees and confirms that references to “affiliates” of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC that appear in this Agreement shall be understood to include Mitsubishi UFJ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Securities Co., Ltd.
(b) Each Initial Purchaser agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Initial Purchaser, but only with reference to information relating to such Initial Purchaser furnished to the Company in writing by such Initial Purchaser through the Representatives expressly for use in the Preliminary Memorandum, the Time of Sale Memorandum, any Additional Written Offering Communication prepared by or on behalf of, used by or referred to by the Company, or the Final Memorandum or any amendment or supplement thereto.
(c) In case any proceeding (including shareholder actions, derivative actions any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or otherwise8(b), damages, obligations or liabilities, whether joint or several, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the reasonable indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of their counsel, that may such counsel shall be incurred in advising with respect at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to and/or defending the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Representatives, in the case of parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened claims, actions, suits, investigations or proceedings to proceeding in respect of which any Indemnified Party and/or its Personnel may become 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 any statement as to or otherwise involved any admission of fault, culpability or failure to act by or on behalf of such indemnified party.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an indemnified party or insufficient in respect of any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damages, damages or liabilities or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Company by the Indemnified Party and its Personnel or otherwise in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its Personnel.
(b) If for any reason the foregoing indemnification is unavailable to an Indemnified Party or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Initial Purchasers on the other hand from the offering of the Securities or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative fault of the Company on the one hand and of the Initial Purchasers on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Initial Purchasers on the other hand but also in connection with the offering of the Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Securities (before deducting expenses) received by the Company and the total discounts and commissions received by the Initial Purchasers bear to the aggregate offering price of the Securities. The relative fault of the Company on the one hand and of the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Initial Purchasers and the Indemnified Party and/or its Personnelparties’ relative intent, as well as any relevant equitable considerations; provided that the Company shallknowledge, in any event, access to information and opportunity to correct or prevent such statement or omission. The Initial Purchasers’ respective obligations to contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that Section 8 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective principal amount of Securities they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelInitial Purchasers agree that it would not be just or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(d). The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 8, no Initial Purchaser shall be required to contribute any amount in excess of the amount by which the total price at which the Securities resold by it in the initial placement of such Securities were offered to investors exceeds the amount of any damages that such Initial Purchaser 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 remedies provided for in this Section 8 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) With respect to The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Initial Purchaser, any person controlling any Initial Purchaser or any affiliate of any Initial Purchaser or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Securities.
Appears in 1 contract
Sources: Purchase Agreement (Infinera Corp)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold harmless the UnderwritersUnderwriter, each person, if any, who controls the Underwriter within the meaning of their subsidiaries and affiliates (collectivelyeither Section 15 of the Securities Act or Section 20 of the Exchange Act, the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of the directorsUnderwriter within the meaning of Rule 405 under the Securities Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or preliminary prospectus supplement, any Issuer Free Writing Prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon information relating to the performance of professional services rendered Underwriter furnished to the Company in writing by the Indemnified Party and its Personnel Underwriter through you expressly for use therein; provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus or otherwise in connection with preliminary prospectus supplement shall not inure to the matters referred benefit of the Underwriter or any person controlling the Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of the Underwriter to in this Agreement (including the aggregate amount paid in reasonable settlement of person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities, proceedings if required by law so to have been delivered, at or claims that may be made against an Indemnified Party and/or its Personnel)prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelCompany with Section 7(a) hereof.
(b) If The Company agrees to indemnify and hold harmless each Selling Shareholder, each person, if any, who controls any Selling Shareholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, each affiliate of any Selling Shareholder within the meaning of Rule 405 under the Securities Act and each of their respective officers, directors, employees, representatives and agents, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or preliminary prospectus supplement, any Issuer Free Writing Prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon Selling Shareholder Information relating to such Selling Shareholder.
(c) Each Selling Shareholder agrees, severally and not jointly, to indemnify and hold harmless the Company, the directors of the Company, the officers of the Company who sign the Registration Statement, the Underwriter, and each person, if any, who controls the Company or the Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of the Underwriter within the meaning of Rule 405 under the Securities Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to Selling Shareholder Information relating to such Selling Shareholder; provided, further, that the liability under this subsection (c) of any Selling Shareholder shall be limited to an amount equal to the gross proceeds, after underwriting commissions and discounts and expenses, to such Selling Shareholder from the sale of Shares sold by such Selling Shareholder hereunder; and provided, further, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of the Underwriter, or any person controlling the Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of the Underwriter to the person asserting any such losses, claims, damages or liabilities, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such failure is the result of noncompliance by the Company with Section 7(a) hereof.
(d) The Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Shareholders, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or any Selling Shareholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or preliminary prospectus supplement, any Issuer Free Writing Prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use in the Registration Statement, any preliminary prospectus or preliminary prospectus supplement, any Issuer Free Writing Prospectus, the Prospectus or any amendments or supplements thereto.
(e) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a), 9(b), 9(c) or 9(d), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (x) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Underwriter and all persons, if any, who control the Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of the Underwriter within the meaning of Rule 405 under the Securities Act, (y) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (z) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Selling Shareholders, all persons, if any, who control any Selling Shareholder within the meaning of either such Section, all affiliates of any Selling Shareholder within the meaning of Rule 405 under the Securities Act and each of their respective officers, directors, employees, representatives and agents, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriter and such control persons and affiliates of the Underwriter, such firm shall be designated in writing by you. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Shareholders, such control persons of any Selling Shareholders, such affiliates of any Selling Shareholders and such respective officers, directors, employees, representatives and agents, such firm shall be designated in writing by the Selling Shareholders. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (1) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and has not been objected to by such indemnifying party within such 30 day period and (2) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(f) To the extent the indemnification provided for in Section 9(a), 9(b), 9(c) or 9(d) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 9(f)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 9(f)(i) above but also the relative fault of the Company indemnifying party or parties on the one hand and of the Indemnified Party and/or its Personnelindemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that . The relative benefits received by the Company shalland the Selling Shareholders on the one hand and the Underwriter on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by each Selling Shareholder and the total underwriting discounts and commissions received by the Underwriter, in any eventeach case as set forth in the table on the cover of the Prospectus Supplement, contribute bear to the aggregate Purchase Price of the Shares. The relative fault of the Selling Shareholders on the one hand and the Underwriter on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Selling Shareholders or by the Underwriter and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The liability of each Selling Shareholder under the contribution agreement contained in this Section 9(f) shall (i) apply only with reference to the Selling Shareholder Information relating to such Selling Shareholder and (ii) be limited to an amount equal to the gross proceeds, after underwriting commissions and discounts and expenses, to such Selling Shareholder from the sale of Shares sold by such Selling Shareholder hereunder.
(g) The Selling Shareholders and the Underwriter agree that it would not be just or equitable if contribution pursuant to this Section 9 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(f). The amount paid or payable by the Indemnified Party and/or its Personnel an indemnified party as a result of such expensethe losses, lossclaims, claimdamages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, damage or liabilitysubject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, the Underwriter shall not be required to contribute any amount in excess of such the amount over by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is Underwriter has otherwise been required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or pay by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnelsuch untrue or alleged untrue statement or omission or alleged omission. Furthermore, the Indemnified Party shall have the right liability of each Selling Shareholder to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered contribute under this Agreement and/or the termination of this Agreement.
subsection (f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for Section 9 shall be limited to an amount equal to (i) the gross proceeds, before underwriting commissions and on behalf of such person.discounts and expenses,
Appears in 1 contract
Indemnity and Contribution. 12.1 The Issuer and its subsidiaries or affiliated companies, as the case may be (acollectively, the “Indemnifying Party”) The Company shall hereby agree to indemnify and hold harmless the UnderwritersAgent and each of its sub-agents, each of their its subsidiaries and affiliates affiliates, and each of its directors, officers, shareholders, partners, advisors, employees and agents (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) and each of ), to the directorsfull extent lawful, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), feeslosses, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or damages and liabilities, whether joint or several, (including the aggregate amount paid in reasonable settlement of any actions, suits, proceedings, investigations or claims and the reasonable fees and expenses of their counsel, counsel that may be incurred in advising with respect to and/or defending any actual action, suit, proceeding, investigation or claim that may be made or threatened claims, actions, suits, investigations or proceedings against any Indemnified Party) to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, otherwise insofar as such expenses, losses, claims, damagesactions, damages or liabilities or actions relate to, are caused by, result from, arise out of or are basedbased upon, directly or indirectly, upon the performance of professional services rendered to the Company Indemnifying Party by the Indemnified Party and its Personnel Agent under this Agreement or otherwise in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of any such actions, suits, investigations, proceedings or claims that may be made against an Indemnified Party and/or its Personnel), unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of Agreement.
12.2 Notwithstanding the foregoing, this indemnity shall not apply to all expenses (including reasonable legal the extent that a court of competent jurisdiction in a final judgment that has become non- appealable shall determine that such expenses), losses, claims and claims, actions, costs, damages or liabilities that to which the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that Party may be threatened subject were caused by the gross negligence or brought against an wilful misconduct of the Indemnified Party.
12.3 The Indemnifying Party also agrees that no Indemnified Party and/or its Personnelwill have any liability (either direct or indirect, in contract or tort or otherwise) to the Indemnifying Party or any person asserting claims on the Indemnifying Party’s behalf or in right for or in connection with the performance of services rendered to the Indemnifying Party by the Agent, except to the extent that any expenses, losses, claims, actions, costs, damages or liabilities incurred by the Indemnifying Party are determined by a court of competent jurisdiction in a final judgement that has become non-appealable to have resulted from the negligence or willful misconduct of such Indemnified Party.
(b) 12.4 If for any reason (other than a determination as to any of the events referred to in section 12.2 herein) the foregoing indemnification is unavailable to an the Agent or any other Indemnified Party or its Personnel or is insufficient to hold an the Agent or any other Indemnified Party or its Personnel harmless, then the Company Indemnifying Party shall contribute to the amount paid or payable by an the Agent or any other Indemnified Party and/or its Personnel as a result of such expense, loss, claim, action, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company Indemnifying Party on the one hand and the Agent or any other Indemnified Party and/or its Personnel on the other hand but also the relative fault of the Company and Indemnifying Party, the Agent or any other Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided that the Company shall, Indemnifying Party shall in any event, event contribute to the amount paid or payable by the Agent or any other Indemnified Party and/or its Personnel as a result of such expense, loss, claim, action, damage or liability, liability any amount in excess of such amount over the amount of the fees actually received by the Indemnified Party pursuant to Agent under this Agreement.
12.5 Promptly after receiving notice of an action, suit, proceeding or claim against the Agent or any other Indemnified Party or receipt of notice of the commencement of any investigation which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Indemnifying Party, an Indemnified Party will notify the Indemnifying Party in writing of the particulars thereof and will provide copies of all relevant documentation to the Indemnifying Party and, the Indemnifying Party shall undertake the investigation and defence thereof on behalf of the Agent or the Indemnified Party, as applicable, including the prompt employment of counsel reasonably acceptable to the Agent or the Indemnified Party affected and the payment of all reasonable expenses and throughout the course of any investigation or legal proceeding as contemplated herein, the Indemnifying Party will provide copies of all relevant documentation to the Agent and the Indemnified Party, will keep the Agent and the Indemnified Party advised of the progress thereof and will discuss with the Agent and the Indemnified Party all significant actions proposed. The omission of an Indemnified Party to so notify the Indemnifying Party shall not relieve the Indemnifying Party of any liability which the Indemnifying Party may have to the Agent or any other Indemnified Party except only to the extent that any such delay in or failure to give notice as herein required prejudices the defence of such action, suit, proceeding, claim or investigation or results in any material increase in the liability which the Indemnifying Party would otherwise have under this indemnity had an Indemnified Party not so delayed in or failed to give the notice required hereunder.
12.6 Notwithstanding that the Indemnifying Party shall undertake the investigation and defence of any action, any Indemnified Party shall have the right, at the Indemnifying Party’s expense, to employ separate counsel of such Indemnified Party’s choice, in respect of the defence of any action, suit, proceeding, claim or investigation if: (a) the employment of such counsel has been authorized by the Indemnifying Party; or (b) the Indemnifying Party has not assumed the defence and employed counsel therefor within 5 days after receiving notice of such action, suit, proceeding, claim or investigation; or (c) counsel retained by the Indemnifying Party or the Indemnified Party has advised the Indemnified Party that representation of both parties by the same counsel would be inappropriate because there may be legal defences available to the Indemnified Party which are different from or in addition to those available to the Indemnifying Party (in which event and to that extent, the Indemnifying Party shall not have the right to assume or direct the defence on the Indemnified Party’s behalf) or that there is a conflict of interest between the Indemnifying Party and the Indemnified Party or the subject matter of the action, suit, proceeding, claim or investigation may not fall within the indemnity set forth herein (in either of which events the Indemnifying Party shall not have the right to assume or direct the defence on the Indemnified Party’s behalf). Notwithstanding any other provision of this indemnity, any Indemnified Party shall have the right, at such Indemnified Party’s expense, to employ counsel of such Indemnified Party’s choice, in respect of the defence of any action, suit, proceeding, claim or investigation, and such employment shall not relieve the Indemnifying Party from its obligations to undertake the investigation and defence of any action, suit, proceeding, claim or investigation unless such Indemnified Party consents, in writing, to such relief.
12.7 The Company Indemnifying Party agrees that in case any legal proceeding shall be brought against the Company Indemnifying Party and/or an the Agent or any other Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company Indemnifying Party and/or the Agent or any other Indemnified Party and/or its Personnel, and/or where an and the Agent or such other Indemnified Party and/or its Personnel is shall be required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, with or by reason of this Agreement, the engagement of the Agent hereunder, or the performance of professional services rendered to the Company Indemnifying Party by the Indemnified Party and/or its PersonnelAgent hereunder, the Agent or such other Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the reasonable fees and expenses of such counsel as well as the reasonable costs (including an amount to reimburse the Indemnified Party Agent for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (its, or any of its affiliates, directors, officers, employees, partners or agents (collectively, “Personnel”) in connection therewith) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company Indemnifying Party as they occur.
(d) Promptly after receipt 12.8 No admission of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof liability and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may action, suit, proceeding, claim or investigation shall be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlementaffected, such consent not to be unreasonably withheld. No admission of liability shall be made and the Indemnifying Party shall not be liable for any settlement of any action, suit, proceeding, claim or investigation made without its consent, such consent not to be unreasonably withheld.
12.9 The Indemnifying Party hereby acknowledges that the Agent acts and appoints the Agent, as trustee for the other Indemnified Party and its Personnel shall have Parties of the right Indemnifying Party’s covenants under this indemnity with respect to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting and the Agent agrees to accept such counseltrust and to hold and enforce such covenants on behalf of such persons.
(e) 12.10 The Indemnifying Party hereby agrees to waive any right it may have of first requiring the Indemnified Parties to proceed against or enforce any other right, power, remedy, security or claim payment from any other person before claiming under this indemnity.
12.11 The indemnity and contribution obligations of the Company Indemnifying Party hereunder shall be in addition to any liability which the Company Indemnifying Party may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company Indemnifying Party, the Agent and the any other Indemnified Parties and its PersonnelParty. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the or any termination of this Agreement.
(f) With respect to any party who may be indemnified by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and on behalf of such person.
Appears in 1 contract
Indemnity and Contribution. (a) The Company shall Company, Centennial Cellular and Centennial PR agree, jointly and severally, to indemnify and hold the Underwriters, harmless each of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) Initial Purchaser and each person, if any, who controls any Initial Purchaser within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties (Exchange Act, and each affiliate of any Initial Purchaser within the “Personnel”) harmless meaning of Rule 405 under the Securities Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, liabilities without limitation, any legal or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Company by the Indemnified Party and its Personnel or otherwise other expenses reasonably incurred in connection with the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement of defending or investigating any such actions, suits, investigations, proceedings action or claims that may be made against an Indemnified Party and/or its Personnelclaim) caused by any untrue statement or alleged untrue statement of a material fact contained in either Memorandum (as amended or supplemented if the Issuers shall have furnished any amendments or supplements thereto), unless such actual or threatened claim, action, suit, investigation caused by any omission or proceeding has been caused solely by or is alleged omission to state therein a material fact necessary to make the result statements therein in the light of the gross negligencecircumstances under which they were made not misleading, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), except insofar as such losses, claims and claims, damages or liabilities that the Indemnified Parties and/or their Personnel may incur as a result of are caused by any action such untrue statement or litigation that may be threatened omission or brought against an Indemnified Party and/or its Personnel.
(b) If for alleged untrue statement or omission based upon information relating to any reason the foregoing indemnification is unavailable to an Indemnified Party or its Personnel or insufficient to hold an Indemnified Party or its Personnel harmless, then the Company shall contribute Initial Purchaser furnished to the amount paid or payable by an Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand but also the relative fault of the Company and the Indemnified Party and/or its Personnel, as well as any relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company Issuers in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceedingInitial Purchaser through you expressly for use therein; provided, however however, that the defence foregoing indemnity agreement with respect to losses, claims, damages or liabilities shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure inure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
Initial Purchaser (for any person controlling any Initial Purchaser) With with respect to any party who may be indemnified losses, claims, damages or liabilities arising out of or based upon (x) any untrue statement or alleged untrue statement of any material fact in the Preliminary Memorandum or (y) the omission or alleged omission to state in the Preliminary Memorandum a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, if: (1) the Company furnished sufficient copies of the Final Memorandum on a timely basis to permit delivery of the Final Memorandum to all persons purchasing Securities from the Initial Purchasers in the initial resale of such Securities (such persons being the "Initial Resale Purchasers") at or prior to the written confirmation of the sale of the Securities to such person; (2) the Initial Resale Purchaser asserting such losses, claims, damages or liabilities purchased Securities in the initial resale from the Initial Purchasers and a copy of the Final Memorandum was not sent or given by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and or on behalf of such personInitial Purchaser to such Initial Resale Purchaser; and (3) the Final Memorandum would have cured the defect giving rise to such losses, claims, damages or liabilities. The term "Final Memorandum" as used for purposes of Section 8(a) herein shall mean the Final Memorandum, as amended or supplemented if the Issuers shall have furnished any amendments or supplements thereto.
Appears in 1 contract
Sources: Purchase Agreement (Centennial Communications Corp /De)
Indemnity and Contribution. (a) The Company shall and Gol, jointly and severally, agree to indemnify and hold the Underwritersharmless each International Underwriter, each person, if any, who controls any International Underwriter within the meaning of their subsidiaries and affiliates (collectivelyeither Section 15 of the Securities Act or Section 20 of the Exchange Act, the “Indemnified Parties” and individually, an “Indemnified Party”) and each affiliate of any International Underwriter within the directorsmeaning of Rule 405 under the Securities Act, officers, employees, shareholders, unitholders, advisors and agents of the Indemnified Parties (the “Personnel”) harmless from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the ADS Registration Statement or any amendments thereto, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company or Gol shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or actions arise out of omission or are based, directly alleged untrue statement or indirectly, omission based upon the performance of professional services rendered information relating to any International Underwriter furnished to the Company or Gol in writing by such International Underwriter through you expressly for use therein; provided, however, that the Indemnified Party and its Personnel or otherwise in connection foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the matters referred to in this Agreement (including the aggregate amount paid in reasonable settlement benefit of any International Underwriter from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Securities, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such International Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such International Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Securities to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct Company or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelGol with Section 7(a) hereof.
(b) If Each Selling Shareholder agrees, severally and not jointly, to indemnify and hold harmless each International Underwriter, each person, if any, who controls the Company, Gol or any International Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any International Underwriter within the meaning of Rule 405 under the Securities Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the ADS Registration Statement or any amendment thereto, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company or Gol shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Selling Shareholder furnished in writing to the Company by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto. The liability of each Selling Shareholder under the indemnity agreement contained in this paragraph shall be limited to an amount equal to the aggregate Public Offering Price (less any concession under Section 4) of the Shares sold by such Selling Shareholder under this Agreement.
(c) Each International Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Shareholders, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or any Selling Shareholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereto, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such International Underwriter furnished to the Company in writing by such International Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c) such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all International Underwriters and all persons, if any, who control any International Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any International Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Selling Shareholders and all persons, if any, who control any Selling Shareholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the International Underwriters and such control persons and affiliates of any International Underwriters, such firm shall be designated in writing by Morgan Stanley. In the case of any such separate firm for the Co▇▇▇▇▇, ▇▇▇ ▇▇▇h directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Shareholders and such control persons of any Selling Shareholders, such firm shall be designated in writing by the persons named as attorneys-in-fact for the Selling Shareholders under the Powers of Attorney. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a), 9(b) or 9(c) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Securities or (ii) if the allocation provided by clause 9(e)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 9(e)(i) above but also the relative fault of the Company indemnifying party or parties on the one hand and of the Indemnified Party and/or its Personnelindemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that . The relative benefits received by the Company shallSellers on the one hand and the International Underwriters on the other hand in connection with the offering of the Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Securities (before deducting expenses) received by each Seller and the total underwriting discounts and commissions received by the International Underwriters, in any eventeach case as set forth in the table on the cover of the Prospectus, contribute bear to the aggregate Public Offering Price of the Securities. The relative fault of the Sellers on the one hand and the International Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Sellers or by the International Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The International Underwriters' respective obligations to contribute pursuant to this Section 9 are several in proportion to the respective number of Securities they have purchased hereunder, and not joint.
(f) The Sellers, Gol and the International Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the International Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(e). The amount paid or payable by the Indemnified Party and/or its Personnel an indemnified party as a result of such expensethe losses, lossclaims, claimdamages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, damage or liabilitysubject to the limitations set forth above, any excess of such amount over the amount of the fees received by the Indemnified Party pursuant to this Agreement.
(c) The Company agrees that in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify expenses reasonably incurred by such indemnified party in connection therewith with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, no International Underwriter shall be required to respond contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to procedures designed the public were offered to discover information regarding, in connection with, or the public exceeds the amount of any damages that such International Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the performance meaning of professional services rendered Section 11(f) of the Securities Act) shall be entitled to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counsel, and the fees and expenses contribution from any person who was not guilty of such counsel as well as the costs (including an amount fraudulent misrepresentation. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies that may otherwise be available to reimburse the Indemnified Party for time spent by it and its Personnel any indemnified party at law or in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occurequity.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counsel.
(eg) The indemnity and contribution obligations provisions contained in this Section 9 and the representations, warranties and other statements of the Company shall be Company, Gol and the Selling Shareholders contained in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement shall remain operative and shall be binding upon in full force and enure to the benefit effect regardless of (i) any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreement.
, (fii) With respect to any party who may be indemnified investigation made by the above indemnity is not a party to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and or on behalf of such personany International Underwriter, any person controlling any International Underwriter or any affiliate of any International Underwriter, any Selling Shareholder or any person controlling any Selling Shareholder, or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Securities.
Appears in 1 contract
Sources: Underwriting Agreement (Gol Intelligent Airlines Inc.)
Indemnity and Contribution. (a) The Company shall agrees to indemnify and hold harmless each Underwriter (including, for this purpose, any affiliated broker-dealer of an Underwriter participating as an initial seller in the Underwriters, each offering of their subsidiaries and affiliates (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”Underwritten Securities) and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents 1933 Act or Section 20 of the Indemnified Parties (the “Personnel”) harmless 1934 Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, liabilities without limitation, any legal or actions arise out other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or are basedany amendment thereof, directly including the Rule 430B Information, or indirectlyin the General Disclosure Package, upon the performance of professional services rendered to any preliminary prospectus, any Issuer Free Writing Prospectus, any written or graphic road show materials or investor presentation materials used by the Company by the Indemnified Party and its Personnel or otherwise in connection with the matters referred offering of the Underwritten Securities not otherwise constituting an Issuer Free Writing Prospectus (a “non-IFWP road show”), or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein (with respect to any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus only, in this Agreement (including the aggregate amount paid in reasonable settlement light of the circumstances under which they were made) or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such actions, suits, investigations, proceedings untrue statement or claims that may be made against an Indemnified Party and/or its Personnel), unless omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or is the result of the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelUnderwriter through you expressly for use therein.
(b) If Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, including the Rule 430B Information, or in the General Disclosure Package, any preliminary prospectus, any Issuer Free Writing Prospectus, any non-IFWP road show, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 6(a) or 6(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party shall be entitled to retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the indemnifying party does not promptly retain counsel reasonably satisfactory to the indemnified party or (iii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party reasonably concludes that the representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by Citigroup Global Markets Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC and U.S. Bancorp Investments, Inc. in the case of parties indemnified pursuant to Section 6(a) hereof, and by the Company, in the case of parties indemnified pursuant to Section 6(b) hereof. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement; provided that an indemnifying party shall not be liable for any such settlement effected without its consent if such indemnifying party (x) reimburses such indemnified party in accordance with such request to the extent that the indemnifying party in its judgment considers such request to be reasonable and (y) provides written notice to the indemnified party stating the reason it deems the unpaid balance unreasonable, in each case no later than 45 days after receipt by such indemnifying party of the aforesaid request from the indemnified party. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless (i) such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) To the extent the indemnification provided for in Section 6(a) or 6(b) hereof is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Underwritten Securities or (ii) if the allocation provided by clause 6(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 6(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel Underwriters on the other hand but also in connection with the offering of the Underwritten Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Underwritten Securities (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate public offering price of the Underwritten Securities. The relative fault of the Company on the one hand and the Indemnified Party and/or its PersonnelUnderwriters on the other hand shall be determined by reference to, as well as any relevant equitable considerations; provided that among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such expense, loss, claim, damage statement or liability, any excess of such amount over the amount of the fees received by the Indemnified Party omission. The Underwriters’ respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 6 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective number of Underwritten Securities they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its PersonnelUnderwriters agree that it would not be just or equitable if contribution pursuant to this Section 6 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 6(d) hereof. The foregoing amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this AgreementSection 6, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Underwritten Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The 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) With respect to The indemnity and contribution provisions contained in this Section 6 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Underwriter or any person controlling any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Underwritten Securities.
Appears in 1 contract
Sources: Underwriting Agreement (DDR Corp)
Indemnity and Contribution. (a) The Company shall Each of the Issuers and, subject to the last sentence of the ninth introductory paragraph of this Agreement, Coyote, jointly and severally, agrees to indemnify and hold the Underwritersharmless each Placement Agent, each of their subsidiaries and affiliates (collectivelyits directors, the “Indemnified Parties” and individually, an “Indemnified Party”) officers and each person, if any, who controls such Placement Agent within the meaning of either Section 15 of the directors, officers, employees, shareholders, unitholders, advisors and agents Securities Act or Section 20 of the Indemnified Parties (the “Personnel”) harmless Exchange Act from and against any and all expenses, losses (other than loss of profits), fees, claims, actions (including shareholder actions, derivative actions or otherwise), damages, obligations or liabilities, whether joint or several, and the reasonable fees and expenses of their counsel, that may be incurred in advising with respect to and/or defending any actual or threatened claims, actions, suits, investigations or proceedings to which any Indemnified Party and/or its Personnel may become subject or otherwise involved in any capacity under any statute or common law or otherwise, insofar as such expenses, losses, claims, damagesdamages and liabilities (including, liabilities without limitation, any legal or actions arise out of or are based, directly or indirectly, upon the performance of professional services rendered to the Company by the Indemnified Party and its Personnel or otherwise other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in either Memorandum (as amended or supplemented if the matters referred Issuers shall have furnished any amendments or supplements thereto to the Placement Agents), or caused by any omission or alleged omission to state therein a material fact necessary to make the statements therein in this Agreement (including the aggregate amount paid light of the circumstances under which they were made not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to any Placement Agent furnished to the Issuers in reasonable settlement writing by such Placement Agent expressly for use therein; provided, however, that the foregoing indemnity agreement with respect -------- ------- to any Preliminary Memorandum shall not inure to the benefit of any Placement Agent from whom the person asserting any such actionslosses, suitsclaims, investigationsdamages or liabilities purchased Securities, proceedings or claims that may be made against an Indemnified Party and/or its Personnel)any person controlling such Placement Agent, if a copy of the Final Memorandum (as then amended or supplemented if the Issuers shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Placement Agent to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Securities to such person, and if the Final Memorandum (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such actual or threatened claim, action, suit, investigation or proceeding has been caused solely by or failure is the result of noncompliance by the gross negligence, wilful misconduct or fraud of the Indemnified Party or its Personnel. Without limiting the generality of the foregoing, this indemnity shall apply to all expenses (including reasonable legal expenses), losses, claims and liabilities that the Indemnified Parties and/or their Personnel may incur as a result of any action or litigation that may be threatened or brought against an Indemnified Party and/or its PersonnelIssuers with Section 6(a) hereof.
(b) If Each Placement Agent agrees, severally and not jointly, to indemnify and hold harmless each of the Issuers and Coyote, its directors, officers and each person, if any, who controls such Issuer or Coyote within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Issuers and Coyote to such Placement Agent, but only with reference to information relating to such Placement Agent furnished to the Issuers in writing by such Placement Agent expressly for use in either Memorandum or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Placement Agents, in the case of parties indemnified pursuant to Section 8(a), and by the Issuers and Coyote, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the foregoing prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement (x) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to an admission of fault, culpability or failure to act by or on behalf of such indemnified party.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an Indemnified Party or its Personnel indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to hold an Indemnified Party or its Personnel harmlesstherein, then the Company each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by an Indemnified Party and/or its Personnel such indemnified party as a result of such expenselosses, lossclaims, claimdamages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Issuers and Coyote on the one hand and the Placement Agents on the other hand from the offering of the Securities or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Party and/or its Personnel on the other hand referred to in clause 8(d)(i) above but also the relative fault of the Company Issuers and Coyote on the Indemnified Party and/or its Personnelone hand and of the Placement Agents on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations; provided that the Company shall, in any event, contribute to the amount paid or payable by the Indemnified Party and/or its Personnel as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees . The relative benefits received by the Indemnified Party Issuers and Coyote on the one hand and the Placement Agents on the other hand in connection with the offering of the Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Securities (before deducting expenses) received by the Issuers and Coyote and the total discounts and commissions received by the Placement Agents, in each case as set forth in the Final Memorandum, bear to the aggregate offering price of the Securities. The relative fault of the Issuers and Coyote on the one hand and of the Placement Agents on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Issuers or Coyote, or by the Placement Agents and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Placement Agents' respective obligations to contribute pursuant to this Agreement.
(c) The Company agrees that Section 8 are several in case any legal proceeding shall be brought against the Company and/or an Indemnified Party and/or its Personnel by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or shall investigate the Company and/or the Indemnified Party and/or its Personnel, and/or where an Indemnified Party and/or its Personnel is required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered proportion to the Company by the Indemnified Party and/or its Personnel, the Indemnified Party shall respective principal amount of Securities they have the right to employ its own counsel in connection therewith, provided the Indemnifying Party acts reasonably in selecting such counselpurchased hereunder, and the fees and expenses of such counsel as well as the costs (including an amount to reimburse the Indemnified Party for time spent by it and its Personnel in connection therewith) at their per diem rates unless such proceeding has been caused solely by or is the result of the gross negligence or fraud of the Indemnified Party (or any of its Personnel) and out-of-pocket expenses incurred by the Indemnified Party or its Personnel in connection therewith shall be paid by the Company as they occur.
(d) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party and/or any of its Personnel or after receipt of notice of the commencement of any investigation, which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Company, the Indemnified Parties (or any one of them) will notify the Company in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Company, will keep the Company advised of the progress thereof and will discuss with the Company all significant actions proposed. However, the failure by the Indemnified Parties to notify the Company will not relieve the Company of its obligations to indemnify the Indemnified Party and/or its Personnel. The Company shall on behalf of itself and the Indemnifying Parties and/or its Personnel be entitled (but not required) to assume the defence of any suit brought to enforce such legal proceeding; provided, however that the defence shall be conducted through legal counsel acceptable to the Indemnified Parties and/or its Personnel, acting reasonably, that no settlement of any such legal proceeding may be made by the Company without the prior written consent of the Indemnifying Parties and/or its Personnel, acting reasonably, and none of the Indemnified Parties and/or its Personnel shall be liable for any settlement of any such legal proceeding unless it has consented in writing to such settlement, such consent not to be unreasonably withheld. The Indemnified Party and its Personnel shall have the right to appoint their own separate counsel at the Company’s cost provided such persons act reasonably in selecting such counseljoint.
(e) The indemnity Issuers, Coyote and the Placement Agents agree that it would not be just or equitable if contribution obligations pursuant to this Section 8 were determined by pro rata allocation (even if the Placement Agents were treated as one entity for such purpose) or by any other method of allocation that does not take account of the Company equitable considerations referred to in Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in addition connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, no Placement Agent shall be required to contribute any amount in excess of the amount by which the total price at which the Securities resold by it in the initial placement of such Securities were offered to investors exceeds the amount of any damages that such Placement Agent 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 remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties and its Personnel who are not signatories to this Agreement and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Indemnified Parties and its Personnel. The foregoing provisions shall survive the completion of professional services rendered under this Agreement and/or the termination of this Agreementindemnified party at law or in equity.
(f) With respect to The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the Issuers and Coyote, as the case may be, contained in this Agreement shall remain operative and in full force and effect regardless of (i) any party who may be indemnified by the above indemnity is not a party to termination of this Agreement, the Underwriters shall obtain and hold the rights and benefits of this indemnity in trust for and (ii) any investigation made by or on behalf of such personany Placement Agent or any person controlling any Placement Agent or by or on behalf of the Issuers, their respective officers or directors or any person controlling any of the Issuers and (iii) acceptance of and payment for any of the Securities.
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