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Common use of Considerations Clause in Contracts

Considerations. The relative benefits received by the Company, its subsidiaries and the Selling Stockholders, on the one hand, and the Underwriters, on the other hand, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Stock purchased under this Agreement (before deducting expenses) received by the Company, its subsidiaries and the Selling Stockholders bear to the total underwriting discounts and commissions received by the Underwriters with respect to the Stock purchased under this Agreement, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, its subsidiaries, the Selling Stockholders, on the one hand, or the Underwriters, on the other hand, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission; provided that the parties hereto agree that the written information furnished to the Company through the Representatives by or on behalf of the Underwriters for use in any Preliminary Prospectus, either of the Registration Statements or the Prospectus consists solely of the Underwriters' Information. The Company, its Subsidiaries the Selling Stockholders and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 7(f) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 7(f) shall be deemed to include, for purposes of this Section 7(f), 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(f), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Stock underwritten by it and distributed to the public were offered to the public less the amount of any damages which such Underwriter has otherwise paid or become liable to pay by reason of any 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 Underwriters' obligations to contribute as provided in this Section 7(f) are several in proportion to their respective underwriting obligations and not joint.

Appears in 2 contracts

Samples: Underwriting Agreement (Lecroy Corp), Underwriting Agreement (Lecroy Corp)

Considerations. The relative benefits received by fault of the Company, its subsidiaries and the Selling Stockholders, Issuers on the one hand, hand and the Underwriters, Participants on the other hand, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Stock purchased under this Agreement (before deducting expenses) received by the Company, its subsidiaries and the Selling Stockholders bear to the total underwriting discounts and commissions received by the Underwriters with respect to the Stock purchased under this Agreement, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the CompanyIssuers or by the Participants and the parties' relative intent, its subsidiaries, the Selling Stockholders, on the one hand, or the Underwriters, on the other hand, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission; provided that the parties hereto agree that the written information furnished to the Company through the Representatives by or on behalf of the Underwriters for use in any Preliminary Prospectus, either of the Registration Statements or the Prospectus consists solely of the Underwriters' Information. The Company, its Subsidiaries the Selling Stockholders and the Underwriters parties agree that it would not be just and equitable if contributions contribution pursuant to this Section 7(f) 7 were to be determined by pro rata allocation (even if the Underwriters Participants were treated as one entity for such purpose) or by any other method of allocation which that does not take into account of the equitable considerations referred to hereinin the immediately preceding paragraph. The amount paid or payable by an indemnified party Indemnified Person as a result of the losslosses, claimclaims, damage or liability, or action in respect thereof, damages and liabilities referred to above in this Section 7(f) the immediately preceding paragraph shall be deemed to include, for purposes of this Section 7(f)subject to the limitations set forth above, any reasonable legal or other expenses reasonably actually incurred by such indemnified party Indemnified Person in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7(f)7, in no Underwriter event shall a Participant be required to contribute any amount in excess of the amount by which the total price at which the Stock underwritten proceeds received by it and distributed to the public were offered to the public less such Participant from sales of Registrable Securities exceeds the amount of any damages which that such Underwriter Participant has otherwise paid or become liable been required to pay by reason of any 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 Underwriters' obligations to contribute as provided indemnity and contribution agreements contained in this Section 7(f) are several 7 will be in proportion addition to their respective underwriting obligations and not jointany liability which the Indemnifying Persons may otherwise have to the Indemnified Persons referred to above.

Appears in 1 contract

Samples: Registration Rights Agreement (Frontiervision Holdings Capital Ii Corp)

Considerations. The relative benefits received by the Company, its subsidiaries Company and the Selling Stockholders, such Shareholders on the one hand, hand and the Underwriters, such underwriters on the other hand, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering (net of the Stock purchased under this Agreement (underwriting discounts and commissions but before deducting expenses) received by the Company, its subsidiaries Company and the Selling Stockholders such Shareholders bear to the total underwriting discounts and commissions received by the Underwriters with respect to the Stock purchased under this Agreementsuch underwriters, in each case as set forth in the table on the cover page of the Prospectusprospectus. The relative fault of the Company and such Shareholders on the one hand and of such underwriters on the other 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, its subsidiaries, Company and such Shareholders or by such underwriters. The relative fault of the Selling Stockholders, Company on the one hand, or the Underwriters, hand and of each such Shareholder on the other handshall be determined by reference to, among other things, whether the intent untrue or alleged untrue statement of a material fact or the parties omission or alleged omission to state a material fact relates to information supplied by such party, and their the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission; provided that the parties hereto agree that the written information furnished to the Company through the Representatives by or on behalf of the Underwriters for use in any Preliminary Prospectus, either of the Registration Statements or the Prospectus consists solely of the Underwriters' Information. The Company, its Subsidiaries the Selling Stockholders Company and the Underwriters Shareholders agree that it would not be just and equitable if contributions contribution pursuant to this Section 7(f) 5.8 were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to hereinin the immediately preceding paragraph. The amount paid or payable by an indemnified party Indemnified Party as a result of the losslosses, claimclaims, damage damages or liability, or action in respect thereof, liabilities referred to above in this Section 7(f) the immediately preceding paragraph shall be deemed to include, for purposes of this Section 7(f)subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7(f), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Stock underwritten by it and distributed to the public were offered to the public less the amount of any damages which such Underwriter has otherwise paid or become liable to pay by reason of any 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 Underwriters' obligations to contribute as provided in this Section 7(f) are several in proportion to their respective underwriting obligations and not joint.with

Appears in 1 contract

Samples: Investors' Agreement (Fisher Scientific International Inc)

Considerations. The relative benefits received by the Company, its subsidiaries Company and the Selling Stockholders, Duke Capital on the one hand, hand and the Underwriters, Remarketing Agent on the other hand, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Stock purchased under this Agreement remarketing (before deducting expenses) received by the Company, its subsidiaries and the Selling Stockholders Duke Capital bear to the total underwriting discounts and commissions compensation received by the Underwriters with Remarketing Agent in respect to the Stock purchased under this Agreement, in each case as set forth in the table on the cover page of the ProspectusRemarketing. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, its subsidiaries, the Selling Stockholders, Company and Duke Capital on the one hand, hand or the Underwriters, Remarketing Agent on the other handand the parties' relative intent, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission; provided that the parties hereto agree that the written information furnished to the Company through the Representatives by or on behalf of the Underwriters for use in any Preliminary Prospectus, either of the Registration Statements or the Prospectus consists solely of the Underwriters' Information. The Company, its Subsidiaries the Selling Stockholders Company and Duke Capital and the Underwriters Remarketing Agent agree that it would not be just and equitable if contributions pursuant to this Section 7(f) section were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to hereinabove in this section. The amount paid or payable by an indemnified party as a result of the losslosses, claimliabilities, damage claims, damages or liability, expenses (or action actions in respect thereof, ) referred to above in this Section 7(f) section shall be deemed to include, for purposes of this Section 7(f), include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7(f)10, no Underwriter the Remarketing Agent shall not be required to contribute any amount in excess of the amount by which the total price at aggregate stated amount of the Senior Notes which the Stock underwritten by it and distributed to the public were offered to the public less remarketed exceeds the amount of any damages which such Underwriter the Remarketing Agent has otherwise paid or become liable been required to pay by reason of any 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 Act0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations to contribute as provided in this Section 7(f) are several in proportion to their respective underwriting obligations and not joint.

Appears in 1 contract

Samples: Remarketing Agreement (Duke Energy Corp)

Considerations. The relative benefits received by the Company, its subsidiaries and the Selling Stockholders, Company on the one hand, hand and the Underwriters, Underwriters on the other hand, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Stock purchased under this Agreement (before deducting expenses) received by the Company, its subsidiaries and the Selling Stockholders Company bear to the total underwriting discounts and commissions received by the Underwriters with respect to the Stock purchased under this AgreementUnderwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, its subsidiaries, the Selling Stockholders, Company on the one hand, hand or the Underwriters, Underwriters on the other handand the parties' relative intent, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission; provided that the parties hereto agree that the written information furnished to the Company through the Representatives by or on behalf of the Underwriters for use in any Preliminary Prospectus, either of the Registration Statements or the Prospectus consists solely of the Underwriters' Information. The Company, its Subsidiaries the Selling Stockholders Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 7(f8(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to hereinabove in this Section 8(d). The amount paid or payable by an indemnified party as a result of the losslosses, claimclaims, damage damages or liability, liabilities (or action actions or proceedings in respect thereof, ) referred to above in this Section 7(f8(d) shall be deemed to include, for purposes of this Section 7(f), include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7(fsubsection (d), (i) no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Stock underwritten by it underwriting discounts and distributed commissions applicable to the public were offered to the public less the amount of any damages which Shares purchased by such Underwriter has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. No Underwriter, and (ii) 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 Underwriters' obligations to contribute as provided in this Section 7(f8(d) to contribute are several in proportion to their respective underwriting obligations and not joint.

Appears in 1 contract

Samples: Underwriting Agreement (Broadbase Software Inc)

Considerations. The relative benefits received by the Company, its subsidiaries and the Selling Stockholders, on the one hand, and the Underwriters, on the other hand, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Stock purchased under this Agreement (before deducting expenses) received by the Company, its subsidiaries and the Selling Stockholders bear to the total underwriting discounts and commissions received by the Underwriters with respect to the Stock purchased under this Agreement, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, its subsidiaries, the Selling Stockholders, Borrower on the one hand, hand or the Underwriters, Indemnified Holders on the other handand the parties' relative intent, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission; provided that the parties hereto agree that the written information furnished to the Company through the Representatives by or on behalf of the Underwriters for use in any Preliminary Prospectus, either of the Registration Statements or the Prospectus consists solely of the Underwriters' Information. The Company, its Subsidiaries the Selling Stockholders Borrower and the Underwriters Indemnified Holders agree that it would not be just and equitable if contributions contribution pursuant to this Section 7(fsubsection (d) were to be determined by pro rata allocation (even if the Underwriters Indemnified Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to hereinabove in this subsection (d). The amount paid or payable by an indemnified party as a result of the losslosses, claimclaims, damage damages or liability, liabilities (or action actions in respect thereof, ) referred to above in this Section 7(fsubsection (d) shall be deemed to include, for purposes of this Section 7(f), include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7(fsubsection (d), no Underwriter Indemnified Holder shall be required to contribute any amount in excess of the amount by which the total price at which amount received by such Indemnified Holder with respect to its sale of Registrable Securities pursuant to a Registration Statement exceeds the Stock underwritten sum of the (i) amount paid by it such Indemnified Holder for such Registrable Security and distributed to the public were offered to the public less the (ii) amount of any damages which such Underwriter Indemnified Holder has otherwise paid or become liable been required to pay by reason of any 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 Underwritersholders' and any underwriter's obligations in this subsection (d) to contribute as provided in this Section 7(f) are several in proportion to their the respective underwriting obligations principal amount of Registrable Securities registered or underwritten, as the case may be, by them and not joint.

Appears in 1 contract

Samples: Registration Rights Agreement (Crown Castle International Corp)

Considerations. The relative benefits received by fault of the Company, its subsidiaries and the Selling StockholdersIssuer, on the one hand, and of the UnderwritersHolders, on the other hand, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Stock purchased under this Agreement (before deducting expenses) received by the Company, its subsidiaries and the Selling Stockholders bear to the total underwriting discounts and commissions received by the Underwriters with respect to the Stock purchased under this Agreement, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, its subsidiaries, the Selling StockholdersIssuer, on the one hand, or by the UnderwritersHolders, on the other hand, and the intent of the parties and their parties' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission; provided that . The amount paid or payable by an indemnified party as a result of the parties hereto agree that the written information furnished losses, claims, damages, liabilities or judgments referred to above shall be deemed to include, subject to the Company through limitations set forth in the Representatives second paragraph of Section 6(a), any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or on behalf of the Underwriters for use in defending any Preliminary Prospectusmatter, either of the Registration Statements including any action that could have given rise to such losses, claims, damages, liabilities or the Prospectus consists solely of the Underwriters' Informationjudgments. The Company, its Subsidiaries the Selling Stockholders Issuer and the Underwriters each Holder agree that it would not be just and equitable if contributions contribution pursuant to this Section 7(f6(d) were to be determined by pro rata allocation (even if the Underwriters Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to hereinin the preceding paragraph. The amount paid or payable by an indemnified party as a result of the losslosses, claimclaims, damage damages, liabilities or liability, or action in respect thereof, judgments referred to above in this Section 7(f) the preceding paragraph shall be deemed to include, for purposes of this Section 7(f)subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with the investigating or defending any matter, including any action that could have given use to such action losses, claims, damages, liabilities or claimjudgments. Notwithstanding the provisions of this Section 7(f)6, no Underwriter Holder, its directors, its officers or any Person, if any, who controls such Holder shall be required to contribute contribute, in the aggregate, any amount in excess of the amount by which the total price at which the Stock underwritten received by it and distributed such Holder with respect to the public were offered sale of Registrable Securities pursuant to a Registration Statement exceeds (i) the public less amount paid by such Holder for such Registrable Securities and (ii) the amount of any damages which such Underwriter Holder has otherwise paid or become liable been required to pay by reason of any 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 UnderwritersHolders' obligations to contribute as provided in pursuant to this Section 7(f6(d) are several in proportion to their the respective underwriting obligations principal amount of Registrable Securities held by each Holder. The Issuer agrees that the indemnity and not jointcontribution provisions of this Section 6 shall apply to the Initial Purchasers to the same extent, on the same conditions, as it applies to Holders.

Appears in 1 contract

Samples: Warrant Registration Rights Agreement (Key Energy Services Inc)

Considerations. The relative benefits received by the Company, its subsidiaries and the Selling Stockholders, Company on the one hand, hand and the Underwriters, each Holder of Registrable Securities on the other hand, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from aggregate amount paid by Purchaser to the offering of Company pursuant to the Stock Purchase Agreement for the Registrable Securities purchased under this Agreement by such Holder that were sold pursuant to the Registration Statement bears to the difference (before deducting expensesthe "Difference") between the amount such Holder paid for the Registrable Securities that were sold pursuant to the Registration Statement and the amount received by the Company, its subsidiaries and the Selling Stockholders bear to the total underwriting discounts and commissions received by the Underwriters with respect to the Stock purchased under this Agreement, in each case as set forth in the table on the cover page of the Prospectussuch Holder from such sale. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, its subsidiaries, the Selling Stockholders, on the one hand, Company or the Underwritersparticular Holder and the parties' relative intent, on the other hand, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission; provided that the parties hereto agree that the written information furnished to the Company through the Representatives by or on behalf of the Underwriters for use in any Preliminary Prospectus, either of the Registration Statements or the Prospectus consists solely of the Underwriters' Information. The Company, its Subsidiaries the Selling Stockholders Company and the Underwriters Holders of Registrable Securities agree that it would not be just and equitable if contributions pursuant to this Section 7(f6(c) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take into account of the equitable considerations consideration referred to hereinin the first sentence of this Section 6(c). The amount paid or payable by an indemnified party as a result of the losslosses, claimclaims, damage damages or liability, or action in respect thereof, liabilities referred to above in the first sentence of this Section 7(f6(c) shall be deemed to include, for purposes of this Section 7(f), include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating investigation or defending against any such action or claimclaim that is the subject of this Section 6(c). Notwithstanding the provisions of this Section 7(f6(c), no Underwriter each Holder of Registrable Securities shall not be required to contribute any amount in excess of the amount by which the total price at which the Stock underwritten by it and distributed to the public were offered to the public less Difference exceeds the amount of any damages which that such Underwriter Holder has otherwise paid or become liable been required to pay by reason of any 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 Underwriters' obligations to contribute as provided in this Section 7(f) are several in proportion to their respective underwriting obligations and not joint.

Appears in 1 contract

Samples: Registration Rights Agreement (Derma Sciences Inc)

Considerations. The relative benefits received by the Company, its subsidiaries and the Selling Stockholders, Offerors on the one hand, hand and the Underwriters, Underwriter on the other hand, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Stock purchased under this Agreement Designated Preferred Securities (before deducting expenses) received by the Company, its subsidiaries and the Selling Stockholders Offerors bear to the total underwriting discounts discounts, commissions and commissions compensation received by the Underwriters with respect to the Stock purchased under this AgreementUnderwriter, in each case as set forth in the table on the cover page of the Prospectus. The relative fault of the Offerors on the one hand and of the Underwriter on the other 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 CompanyOfferors or by the Underwriter and the parties' relative intent, its subsidiaries, the Selling Stockholders, on the one hand, or the Underwriters, on the other hand, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission; provided that the parties hereto agree that the written information furnished to the Company through the Representatives by or on behalf of the Underwriters for use in any Preliminary Prospectus, either of the Registration Statements or the Prospectus consists solely of the Underwriters' Information. The Company, its Subsidiaries the Selling Stockholders Each Offeror and the Underwriters Underwriter agree that it would not be just and equitable if contributions contribution pursuant to this Section 7(fparagraph (d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the losslosses, claimclaims, damage or liabilitydamages, or action in respect thereof, liabilities and expenses referred to above in the first sentence of this Section 7(fparagraph (d) shall be deemed to include, for purposes of this Section 7(f)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(fparagraph (d), no the Underwriter shall not be required to contribute any amount in excess of the amount by which the total price at which the Stock Designated Preferred Securities underwritten by it the Underwriter and distributed to the public were offered to the public less exceeds the amount of any damages which such that the Underwriter has otherwise paid or become liable been required to pay by reason of any 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 Act1900 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this paragraph (d), each person who controls the Underwriter within the meaning of the 1933 Act shall have the same rights to contribution as the Underwriter, and each person who controls an Offeror within the meaning of the 1933 Act, each officer and trustee of an Offeror who shall have signed the Registration Statement and each director of an Offeror shall have the same rights to contribution as the Offerors subject in each case to the preceding sentence. The Underwriters' obligations of the Offerors under this paragraph (d) shall be in addition to contribute as provided any liability which the Offerors may otherwise have and the obligations of the Underwriter under this paragraph (d) shall be in addition to any liability that the Underwriter may otherwise have. (e) The indemnity and contribution agreements contained in this Section 7(f7 and the representations and warranties of the Offerors set forth in this Agreement shall remain operative and in full force and effect, regardless of (i) are several any investigation made by or on behalf of the Underwriter or any person controlling the Underwriter or by or on behalf of the Offerors, or such directors, trustees or officers (or any person controlling an Offeror, (ii) acceptance of any Designated Preferred Securities and payment therefor hereunder and (iii) any termination of this Agreement. A successor of the Underwriter or of an Offeror, such directors, trustees or officers (or of any person controlling the Underwriter or an Offeror) shall be entitled to the benefits of the indemnity, contribution and reimbursement agreements contained in proportion this Section 7. (f) The Company agrees to their respective underwriting obligations indemnify the Trust against any and not jointall losses, claims, damages or liabilities that may become due from the Trust under this Section 7.

Appears in 1 contract

Samples: Underwriting Agreement (Simmons First Capital Trust)

Considerations. In exchange for the transfer referred to in Section 1.1, HEALTHSOUTH will provide the Seller with the following considerations: (a) The relative benefits received total purchase price for all of the business, properties and assets of the Seller to be conveyed, sold, transferred, assigned and delivered to HEALTHSOUTH under this Agreement by the Company, its subsidiaries and Seller is $ 650,000 plus the Selling Stockholders, assumption of the Seller's liability (i) for any sick leave or vacation benefits (calculated as earned time by the Seller) of the Seller's employees on the one handExhibit F which are employed by HEALTHSOUTH, and (ii) under the Underwriterscontracts, leases and agreements of the Seller described in (b) below. Such $650,000 shall be payable in good funds to Seller upon execution and delivery of this Agreement. (b) Subject to Section 1. 10 of this Agreement, HEALTHSOUTH shall assume the contracts, leases and agreements of the Seller relating to the Seller's Business which are listed on the other handExhibit C attached to this Agreement, with respect to such offering provided that HEALTHSOUTH shall not be deemed to assume any liability which may be in the same proportion as the total net proceeds from the offering of the Stock purchased under this Agreement (before deducting expenses) received by the Company, its subsidiaries and the Selling Stockholders bear to the total underwriting discounts and commissions received by the Underwriters with respect to the Stock purchased under this Agreement, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, its subsidiaries, the Selling Stockholders, on the one hand, or the Underwriters, on the other hand, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission; provided that the parties hereto agree that the written information furnished to the Company through the Representatives by or on behalf of the Underwriters for use in any Preliminary Prospectus, either of the Registration Statements or the Prospectus consists solely of the Underwriters' Information. The Company, its Subsidiaries the Selling Stockholders and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 7(f) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 7(f) shall be deemed to include, for purposes of this Section 7(f), 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(f), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Stock underwritten by it and distributed to the public were offered to the public less the amount of any damages which such Underwriter has otherwise paid or become liable to pay by reason of any untrue breach of or alleged untrue statement default under any such contract, lease or omission or alleged omissionagreement which occurred prior to the execution and delivery of this Agreement and which is not disclosed in Exhibit C hereto. No person guilty of fraudulent misrepresentation The Owner and the Seller, at their expense, shall use its best efforts to provide HEALTHSOUTH with valid and enforceable assignments to all such contracts, leases and agreements. (within the meaning of Section 11(fc) Except as expressly provided in Exhibit C, HEALTHSOUTH shall not be deemed to assume any liability of the Securities ActSeller or the Owner whatsoever. Without limiting the generality of the foregoing, HEALTHSOUTH shall not be deemed to have assumed, nor shall HEALTHSOUTH assume, any liability based upon or arising out of any tortious or wrongful actions of Seller or Owner, or any liability for the payment of (i) any taxes of the Seller arising out of transactions occurring on or prior to the execution and delivery of this Agreement; (ii) any taxes of the Seller or the Owner arising in connection with the transactions contemplated by this Agreement; (iii) except as expressly provided in Exhibit F, any salary, wage, benefit, bonus, vacation pay (calculated as earned time by the Seller), sick leave, insurance, employment tax or similar liability of Seller to any employee, officer, director or other person or entity allocable to services performed on or prior to the execution and delivery of this Agreement; or (iv) any liabilities arising in connection with any malpractice or other liability arising in connection with the Seller's or the Owner's physical therapy practices. HEALTHSOUTH shall have no liability whatsoever, for contributions or otherwise, for any pension, employee benefit or profit sharing plan of the Seller or any of the Owner for the benefit of Seller's employees, officers or directors. (d) Except as otherwise agreed by the parties, the parties agree that the cash portion of the purchase price shall be entitled allocated and reported to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations to contribute the Internal Revenue Service and similar governmental agencies as provided in this Section 7(f) are several in proportion to their respective underwriting obligations follows: Equipment, furnishings, supplies, deposits, leasehold improvements and not joint.fixtures $ 90,000 Accounts Receivable $250,000 Goodwill $310,000

Appears in 1 contract

Samples: Agreement to Purchase Assets (Consolidated Health Care Associates Inc)

Considerations. In exchange for the transfer referred to in Section 1.1, HEALTHSOUTH will provide the Sellers with the following considerations: (a) The relative benefits received total purchase price for all of the Purchased Assets to be conveyed, sold, transferred, assigned and delivered to HEALTHSOUTH under this Agreement by the CompanySellers is $3,575,000 plus the assumption of the Sellers' liability (i) for any sick leave or vacation benefits of the Sellers' employees on Exhibit E, its subsidiaries and the Selling Stockholders, on the one handall of which will be employed by HEALTHSOUTH, and (ii) under the Underwriterscontracts, leases and agreements of the Sellers described in (b) below. Such $3,575,000 shall be payable, through payment to the Parent Corporation, in good funds to Sellers upon execution and delivery of this Agreement. (b) Subject to Section 1.9 of this Agreement, HEALTHSOUTH shall assume the contracts, leases and agreements of the Sellers relating to the Sellers' Business which are listed on the other handExhibit B attached to this Agreement, with respect to such offering provided that HEALTHSOUTH shall not be deemed to assume any liability which may be in incurred by reason of any breach of or default under any such contract, lease or agreement which occurred prior to the Effective Date of this Agreement. To the extent that there are any breaches or defaults under any such contract, lease or agreement, a description of the same proportion will be disclosed on Exhibit D, and HEALTHSOUTH shall not be deemed to assume any liability therefor. The Sellers, at their expense, shall provide HEALTHSOUTH with valid and enforceable assignments to all such contracts, leases and agreements. HEALTHSOUTH shall cooperate as may reasonably be required in obtaining such assignments. HEALTHSOUTH shall also assume all legal obligations after the total net proceeds from the offering of the Stock purchased under this Agreement (before deducting expenses) received by the Company, its subsidiaries and the Selling Stockholders bear to the total underwriting discounts and commissions received by the Underwriters Effective Date with respect to the Stock purchased under maintenance of patient records of Sellers' Business. (c) Except as expressly provided in Section 1.3(b) above, HEALTHSOUTH shall not be deemed to assume any liability of the Sellers whatsoever. Without limiting the generality of the foregoing, HEALTHSOUTH shall not be deemed to have assumed, nor shall HEALTHSOUTH assume, any liability based upon or arising out of any tortious or wrongful actions of the Sellers or any liability for the payment of (i) any taxes of the Sellers arising out of transactions occurring on or prior to the Effective Date of this Agreement, in each case as set forth in the table on the cover page ; (ii) any taxes of the ProspectusSellers arising in connection with the transactions contemplated by this Agreement; (iii) except as expressly provided in Exhibit E, any salary, wage, benefit, bonus, vacation pay, sick leave, insurance, employment tax or similar liability of Sellers to any employee, officer, director or other person or entity allocable to services performed on or prior to the Effective Date of this Agreement; or (iv) any liabilities arising prior to the Effective Date in connection with any malpractice or other liability arising in connection with the Sellers' physical therapy practices. The relative fault HEALTHSOUTH shall be determined by reference tohave no liability whatsoever, among other thingsfor contributions or otherwise, whether for any pension, employee benefit or profit sharing plan of the untrue Sellers for the benefit of Sellers' employees, officers or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied directors. (d) Except as otherwise agreed by the Company, its subsidiariesparties, the Selling Stockholders, on the one hand, or the Underwriters, on the other hand, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission; provided that the parties hereto agree that the written information furnished cash portion of the purchase price shall be allocated and reported to the Company through the Representatives by or on behalf of the Underwriters for use in any Preliminary ProspectusInternal Revenue Service and similar governmental agencies as follows: Equipment, either of the Registration Statements or the Prospectus consists solely of the Underwriters' Information. The Companyfurnishings, its Subsidiaries the Selling Stockholders supplies, deposits, leasehold improvements and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 7(f) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 7(f) shall be deemed to include, for purposes of this Section 7(f), 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(f), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Stock underwritten by it and distributed to the public were offered to the public less the amount of any damages which such Underwriter has otherwise paid or become liable to pay by reason of any 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 Underwriters' obligations to contribute as provided in this Section 7(f) are several in proportion to their respective underwriting obligations and not joint.fixtures $100,000 Goodwill $3,475,000

Appears in 1 contract

Samples: Asset Purchase Agreement (Health Fitness Corp /Mn/)