Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) hereof is unavailable to a party that would have been an Indemnified Party under any such section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or such Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) were determined by pro-rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c). The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) to the contrary, (a) 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 and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registration.
Appears in 6 contracts
Samples: Warrant Agreement (AMEDICA Corp), Warrant Agreement (AMEDICA Corp), Warrant Agreement (AMEDICA Corp)
Contribution in Lieu of Indemnification. If the indemnification provided for in under this Section 10(b) hereof 9 from the indemnifying party is unavailable or insufficient to a hold harmless an indemnified party that would have been an Indemnified Party under any such section in respect of any losses, claims, damages or damages, liabilities (or actions in respect thereof) and expenses referred to thereinherein, then each party that would have been an Indemnifying Party thereunder shallthe indemnifying party, in lieu of indemnifying such Indemnified Partythe indemnified party, shall contribute to the amount paid or payable by such Indemnified Party the indemnified party as a result of such losses, claims, damages or damages, liabilities (or actions in respect thereof) and expenses in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on indemnifying party and the one hand and such Indemnified Party on the indemnified party, as well as any other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof)relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, was made by (or not made by, in the case of an omission), or relates to information supplied by (or not supplied by, in the Indemnifying Party case of an omission), or on behalf of, such Indemnified Party indemnifying party or indemnified party, and the parties’ indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) were determined by pro-rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)action. The amount paid or payable by an Indemnified Party a party as a result of the losses, claims, damages losses or other liabilities (or actions in respect thereof) referred to above in this Section 10(c) shall include be deemed to include, subject to the limitations set forth above, any legal or other fees, charges or expenses reasonably incurred by such Indemnified Party party in connection with investigating any investigation or defending any such action or claimproceeding. Notwithstanding anything to the contrary herein, in no event will any provision of party be liable for consequential, special, exemplary or punitive damages in connection with this Agreement. Each indemnifying party’s obligation to make a contribution pursuant to this Section 10(c) to the contrary, (a) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) 9 shall be entitled to contribution from any person who was individual, not guilty of such fraudulent misrepresentation joint and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registrationseveral.
Appears in 5 contracts
Samples: Senior Secured Convertible Note Purchase and Guarantee Agreement (Airspan Networks Holdings Inc.), Senior Secured Convertible Note Purchase and Guarantee Agreement (Airspan Networks Holdings Inc.), Senior Secured Convertible Note Purchase and Guarantee Agreement (Airspan Networks Holdings Inc.)
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 12.8 hereof is unavailable to a party that would have been an Indemnified Party indemnified party under any such section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party indemnifying party thereunder shall, in lieu of indemnifying such Indemnified Partyindemnified party, contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party indemnifying party or such Indemnified Party indemnified party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree agrees that it would not be just and equitable if contribution pursuant to this Section 10(c) 12.9 were determined by pro-pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)12.9. The amount paid or payable by an Indemnified Party indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 12.9 shall include 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 any provision of this Section 10(c) to the contrary, (a) no person 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 Person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registrationmisrepresentation.
Appears in 2 contracts
Samples: Security Agreement (Bpi Packaging Technologies Inc), Securities Purchase Agreement (Bpi Packaging Technologies Inc)
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 8 hereof is unavailable to a party that would have been an Indemnified Party indemnified party under any such section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party indemnifying party thereunder shall, in lieu of indemnifying such Indemnified Partyindemnified party, contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party indemnifying party on the one hand and such Indemnified Party indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party indemnifying party or such Indemnified Party indemnified party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities Stockholder agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 9 were determined by pro-pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)9. The amount paid or payable by an Indemnified Party indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 9 shall include 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 any provision of this Section 10(c) to the contrary, (a) no person No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to indemnification or contribution from any person Person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registrationmisrepresentation.
Appears in 2 contracts
Samples: Registration Rights Agreement (Paperclip Imaging Software Inc/De), Registration Rights Agreement (Access Solutions International Inc)
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 8 hereof is unavailable to a party that would have been an Indemnified Party indemnified party under any such section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party indemnifying party thereunder shall, in lieu of indemnifying such Indemnified Partyindemnified party, contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party indemnifying party on the one hand and such Indemnified Party indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof); provided that each Stockholder's liability hereunder (including, without limitation, Section 8) with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Stockholder from the sale of the Restricted Securities sold by such Stockholder in such registration. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party indemnifying party or such Indemnified Party indemnified party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities Stockholder agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 9 were determined by pro-pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)9. The amount paid or payable by an Indemnified Party indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 9 shall include 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 any provision of this Section 10(c) to the contrary, (a) no person No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to indemnification or contribution from any person Person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registrationmisrepresentation.
Appears in 2 contracts
Samples: Registration Rights Agreement (Nuvox Inc /De/), Registration Rights Agreement (Gabriel Communications Inc /De/)
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 6.7 hereof is unavailable to a party that would have been an Indemnified Party under any such section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or such Indemnified Party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Stockholder holding Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 6.8 were determined by proPRO-rata RATA allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)6.8. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 6.8 shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) 6.8 to the contrary, (a) no person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s Stockholder's liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder Stockholder from the Registrable Securities sold by such Holder Stockholder in such registration.
Appears in 2 contracts
Samples: Stockholders Agreement (Heritage Property Investment Trust Inc), Stockholders Agreement (Heritage Property Investment Trust Inc)
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 8 hereof is unavailable to a party that would have been an Indemnified Party under any such section Section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or such Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 9 were determined by pro-pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)9. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 9 shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) 9 to the contrary, (a) no person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registration.
Appears in 2 contracts
Samples: Registration Rights Agreement (Advanced Communications Technologies Inc), Registration Rights Agreement (Act-De LLC)
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) hereof hereunder is held by a court of competent jurisdiction to be unavailable to a an indemnified party that would have been an Indemnified Party under with respect to any such section in respect of any lossesloss, claimsclaim, damages damage, liability or liabilities (or actions in respect thereof) action referred to thereinherein, then each party that would have been an Indemnifying Party thereunder shallthe indemnifying party, in lieu of indemnifying such Indemnified Partyindemnified party hereunder, shall contribute to the amount amounts paid or payable by such Indemnified Party indemnified party as a result of such lossesloss, claimsclaim, damages damage, liability or liabilities (or actions in respect thereof) action in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party indemnifying party on the one hand and such Indemnified Party of the indemnified party on the other in connection with the statements or omissions which resulted in such lossesloss, claimsclaim, damages damage, liability or liabilities (or actions action as well as any other relevant equitable considerations; provided, that the maximum amount of liability in respect thereof)of such contribution shall be limited, in the case of the Investor, to an amount equal to the net proceeds (after deducting underwriting fees, commissions or discounts) actually received by the Investor from the sale of Registrable Securities effected pursuant to such registration. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party indemnifying party or such Indemnified Party by the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities parties agree that it would not be just and equitable if contribution pursuant to this Section 10(c) hereto were determined by pro-pro rata allocation or by any other method of or allocation which does not take account of the equitable considerations referred to above in this Section 10(c)herein. The amount paid No Person guilty or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) to the contrary, (a) no person guilty liable of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registrationPerson.
Appears in 2 contracts
Samples: Registration Rights Agreement, Form of Registration Rights Agreement (Carrols Restaurant Group, Inc.)
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 8 hereof is unavailable to a party that would have been an Indemnified Party under any such section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or such Indemnified Party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 9 were determined by pro-rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)9. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 9 shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) 9 to the contrary, (a) no person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s 's liability hereunder with respect to any particular registration Registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registrationRegistration.
Appears in 2 contracts
Samples: Registration Rights Agreement (Mce Companies Inc), Registration Rights Agreement (Mce Companies Inc)
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 8 hereof is unavailable to a party that would have been an Indemnified Party under any such section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or such Indemnified Party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 9 were determined by pro-rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)9. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 9 shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) 9 to the contrary, (a) no person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s 's liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registration.
Appears in 2 contracts
Samples: Registration Rights Agreement (Buffalo Wild Wings Inc), Registration Rights Agreement (Community Distributors Inc)
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) hereof hereunder is held by a court of competent jurisdiction to be unavailable to a an indemnified party that would have been an Indemnified Party under with respect to any such section in respect of any lossesloss, claimsclaim, damages damage, liability or liabilities (or actions in respect thereof) action referred to thereinherein, then each party that would have been an Indemnifying Party thereunder shallthe indemnifying party, in lieu of indemnifying such Indemnified Partyindemnified party hereunder, shall contribute to the amount amounts paid or payable by such Indemnified Party indemnified party as a result of such lossesloss, claimsclaim, damages damage, liability or liabilities (or actions in respect thereof) action in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party indemnifying party on the one hand and such Indemnified Party of the indemnified party on the other in connection with the statements or omissions which resulted in such lossesloss, claimsclaim, damages damage, liability or liabilities (or actions action as well as any other relevant equitable considerations; provided that the maximum amount of liability in respect thereof)of such contribution shall be limited, in the case of the Investor, to an amount equal to the net proceeds (after deducting underwriting fees, commissions or discounts) actually received by the Investor from the sale of Registrable Securities effected pursuant to such registration. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party indemnifying party or such Indemnified Party by the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities Parties agree that it would not be just and equitable if contribution pursuant to this Section 10(c) hereto were determined by pro-pro rata allocation or by any other method of or allocation which does not take account of the equitable considerations referred to above in this Section 10(c)herein. The amount paid No Person guilty or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) to the contrary, (a) no person guilty liable of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registrationPerson.
Appears in 2 contracts
Samples: Registration Rights and Stockholders’ Agreement (Carrols Restaurant Group, Inc.), Registration Rights and Stockholders’ Agreement (Carrols Restaurant Group, Inc.)
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 9.8 hereof is unavailable to a party that would have been an Indemnified Party indemnified party under any such section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party indemnifying party thereunder shall, in lieu of indemnifying such Indemnified Partyindemnified party, contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party indemnifying party on the one hand and such Indemnified Party indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party indemnifying party or such Indemnified Party indemnified party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 9.9 were determined by pro-pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)9.9. The amount paid or payable by an Indemnified Party indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 9.9 shall include 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 any provision of this Section 10(c) to the contrary, (a) no person 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 and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registrationmisrepresentation.
Appears in 1 contract
Samples: Securities Purchase Agreement (Perkins Family Restaurants Lp)
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b8(h) hereof is unavailable to a party that would have been an Indemnified Party indemnified party under any such section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party indemnifying party thereunder shall, in lieu of indemnifying such Indemnified Partyindemnified party, contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party indemnifying party on the one hand and such Indemnified Party indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party indemnifying party or such Indemnified Party indemnified party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree agrees that it would not be just and equitable if contribution pursuant to this Section 10(c8(h) were determined by pro-pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c8(h). The amount paid or payable by an Indemnified Party indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c8(h) shall include 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 any provision of this Section 10(c) to the contrary, (a) no 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 and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registrationmisrepresentation.
Appears in 1 contract
Samples: Shareholders Agreement (Southern Star Central Corp)
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 8 hereof is unavailable to a party that would have been an Indemnified Party under any such section thereunder in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or such Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 9 were determined by pro-rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)9. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 9 shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) 9 to the contrary, (a) no person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation misrepresentation, and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registration.
Appears in 1 contract
Samples: Registration Rights Agreement (Tetraphase Pharmaceuticals Inc)
Contribution in Lieu of Indemnification. If the indemnification provided for in this Section 10(b) hereof 9 from the Indemnifying Party is unavailable to a party that would have been an Indemnified Party under any such section hereunder in respect of any losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof) expenses referred to therein, then each party that would have been an the Indemnifying Party thereunder shallParty, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof) expenses in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other Parties in connection with the statements or omissions actions which resulted in such losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Parties shall be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been made by, or relates to information supplied by the by, such Indemnifying Party or such Indemnified Party Parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) were determined by pro-rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)action. The amount paid or payable by an Indemnified Party a party as a result of the losses, claims, damages or damages, liabilities (or actions in respect thereof) and expenses referred to above in this Section 10(c) shall be deemed to include any legal or other fees or expenses reasonably incurred by such Indemnified Party party in connection with investigating any investigation or defending any such action or claimproceeding. Notwithstanding any provision of this Section 10(c) to the contrary, (a) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) No party shall be entitled required to contribution from any person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s liability hereunder with respect contribute to any particular registration settlement effected without its consent, which consent shall not be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registrationunreasonably withheld.
Appears in 1 contract
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 9 hereof is unavailable to a party that would have been an Indemnified Party under any such section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or such Indemnified Party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 10 were determined by pro-rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)10. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 10 shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) 10 to the contrary, (a) no person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s 's liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registration.
Appears in 1 contract
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 4.7 hereof is unavailable to a party that would have been an Indemnified Party under any such section Section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or such Indemnified Party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Investor Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 4.8 were determined by pro-rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)4.8. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 4.8 shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) 4.8 to the contrary, (a) no person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s 's liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Investor Securities sold by such Holder in such registration.
Appears in 1 contract
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 8 hereof is unavailable to a party that would have been an Indemnified Party under any such section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or such Indemnified Party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each the Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 9 were determined by pro-pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)9. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 9 shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) to the contrary, (a) no person No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to indemnification or contribution from any person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registrationmisrepresentation.
Appears in 1 contract
Contribution in Lieu of Indemnification. If the indemnification provided for in this Section 10(b) hereof 8.6 from the Indemnifying Party is unavailable to a party that would have been an Indemnified Party under any such section hereunder in respect of any losses, claims, damages damages, liabilities or liabilities expense (or actions in respect thereof) referred to therein, then each party that would have been an the Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other indemnified parties in connection with the statements or omissions actions which resulted in such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of such indemnifying and indemnified parties shall be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact fact, has been made by, or the omission or alleged omission to state a material fact relates to information supplied by the by, such Indemnifying Party or such Indemnified Party indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement action; provided, however, that in no event shall the liability of any Holder hereunder be greater in amount than the difference between the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities giving rise to such contribution obligation and all amounts previously contributed by such Holder with respect to such losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, any legal or omissionother fees or expenses reasonably incurred by such party in connection with any investigation or proceeding. The Company and each Holder of Registrable Securities parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 10(c8.6(d) were determined by pro-pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 10(c)the immediately preceding paragraph. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) to the contrary, (a) no person 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 Person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registrationmisrepresentation.
Appears in 1 contract
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 8 hereof is unavailable to a party that would have been an Indemnified Party under any such section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or such Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities the Investor agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 9 were determined by pro-pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)9. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 9 shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) 9 to the contrary, (a) no person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation and (b) each Holderthe Investor’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder the Investor from the Registrable Securities sold by such Holder the Investor in such registration.
Appears in 1 contract
Contribution in Lieu of Indemnification. If the indemnification provided for in this Section 10(b) hereof 6.7 from the Indemnifying Party is unavailable to a party that would have been an Indemnified Party under any such section hereunder in respect of any losses, claims, damages damages, liabilities or liabilities expense (or actions in respect thereof) referred to therein, then each party that would have been an the Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other indemnified parties in connection with the statements or omissions actions which resulted in such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of such indemnifying and indemnified parties shall be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact fact, has been made by, or the omission or alleged omission to state a material fact relates to information supplied by the by, such Indemnifying Party or such Indemnified Party indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement action; PROVIDED, HOWEVER, that in no event shall the liability of any Holder hereunder be greater in amount than the difference between the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities giving rise to such contribution obligation and all amounts previously contributed by such Holder with respect to such losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, any legal or omissionother fees or expenses reasonably incurred by such party in connection with any investigation or proceeding. The Company and each Holder of Registrable Securities parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 10(c6.7(d) were determined by pro-rata PRO RATA allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 10(c)the immediately preceding paragraph. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) to the contrary, (a) no person 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 Person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registrationmisrepresentation.
Appears in 1 contract
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 8 hereof is unavailable to a party that would have been an Indemnified Party under any such section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or such Indemnified Party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 9 were determined by proPRO-rata RATA allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)9. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 9 shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) to the contrary, (a) no person 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 and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registrationmisrepresentation.
Appears in 1 contract
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 8 hereof is unavailable to a party that would have been an Indemnified Party under any such section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or such Indemnified Party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 9 were determined by proPRO-rata RATA allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)9. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 9 shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) 9 to the contrary, (a) no person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s 's liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registration.
Appears in 1 contract
Samples: Registration Rights Agreement (Art Technology Group Inc)
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 13 hereof is unavailable to a party that would have been an Indemnified Party under any such section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or such Indemnified Party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each the Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 14 were determined by pro-pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)14. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 14 shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) to the contrary, (a) no No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to indemnification or contribution from any person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registrationmisrepresentation.
Appears in 1 contract
Samples: Stock Incentive Compensation Agreement (Tridex Corp)
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 8 hereof is unavailable to a party that would have been an Indemnified Party under any such section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or such Indemnified Party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 9 were determined by pro-pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)9. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 9 shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) 9 to the contrary, (a) no person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s 's liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registration.
Appears in 1 contract
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 1.7 hereof is unavailable to a party that would have been an Indemnified Party under any such section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to thereinLosses, then each party that would have been an Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) Losses in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such the Indemnified Party on the other in connection with the statements or omissions which resulted that result in such lossesLosses, claims, damages or liabilities (or actions in respect thereof)as well as other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or such Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree Issuer agrees that it would not be just and equitable if contribution pursuant to this Section 10(c1.7(e) were determined by pro-pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c1.7(e). The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) Losses referred to above in this Section 10(c1.7(e) shall include 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 any provision of this Section 10(c) to the contrary, (a) no person 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 Person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registrationmisrepresentation.
Appears in 1 contract
Samples: Convertible Notes Purchase Agreement (Wits Basin Precious Minerals Inc)
Contribution in Lieu of Indemnification. If the indemnification --------------------------------------- provided for in Section 10(b) 3.6 hereof is unavailable to a party that would have been an Indemnified Party indemnified party under any such section Section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party indemnifying party thereunder shall, in lieu of indemnifying such Indemnified Partyindemnified party, contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party indemnifying party on the one hand and such Indemnified Party indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, . among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party indemnifying party or such Indemnified Party indemnified party and the parties’ ' relative intent, . knowledge, . access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 3.7 were determined by pro-pro rata allocation or by any other method of allocation which does not take --- ---- account of the equitable considerations referred to above in this Section 10(c)3.7. The amount paid or payable by an Indemnified Party indemnified party as a result of the losses, . claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 3.7 shall include 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 any provision of this Section 10(c) to the contrary, (a) no person 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 Person who was not guilty of such fraudulent misrepresentation and (b) each misrepresentation. Each Holder’s 's liability hereunder with respect to any particular registration Registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registrationRegistration.
Appears in 1 contract
Samples: Number Nine Visual Technology Corp
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 8 hereof is unavailable to a party that would have been an Indemnified Party indemnified party under any such section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party indemnifying party thereunder shall, in lieu of indemnifying such Indemnified Partyindemnified party, contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party indemnifying party on the one hand and such Indemnified Party indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof); provided that each Stockholder’s liability hereunder (including, without limitation, Section 8) with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Stockholder from the sale of the Restricted Securities sold by such Stockholder in such registration. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party indemnifying party or such Indemnified Party indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities Stockholder agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 9 were determined by pro-pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)9. The amount paid or payable by an Indemnified Party indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 9 shall include 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 any provision of this Section 10(c) to the contrary, (a) no person No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to indemnification or contribution from any person Person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registrationmisrepresentation.
Appears in 1 contract
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 6 hereof is unavailable to a party that would have been an Indemnified Party under any such section Section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or such Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 7 were determined by pro-pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)7. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 7 shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) 7 to the contrary, (a) no person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registration.
Appears in 1 contract
Samples: Registration Rights Agreement (Greenwich Kahala Aviation Ltd.)
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 9 hereof is unavailable to a party that would have been an Indemnified Party under any such section thereunder in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or such Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 10 were determined by pro-pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)10. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 10 shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) 10 to the contrary, (a) no person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation misrepresentation, and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registration.
Appears in 1 contract
Samples: Registration Rights Agreement (SBM Financial, Inc.)
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 7 hereof is unavailable to a party that would have been an Indemnified Party indemnified party under any such section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party indemnifying party thereunder shall, in lieu of indemnifying such Indemnified Partyindemnified party, contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party indemnifying party on the one hand and such Indemnified Party indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof); provided that each Stockholder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Stockholder from the sale of the Warrant Shares sold by such Stockholder in such registration. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party indemnifying party or such Indemnified Party indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities Stockholder agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 8 were determined by pro-pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)8. The amount paid or payable by an Indemnified Party indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 8 shall include 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 any provision of this Section 10(c) to the contrary, (a) no person No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to indemnification or contribution from any person Person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registrationmisrepresentation.
Appears in 1 contract
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 8 hereof is unavailable to a party that would have been an Indemnified Party under any such section Section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or such Indemnified Party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 9 were determined by pro-pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)9. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 9 shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) 9 to the contrary, (a) no person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s 's liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registration.
Appears in 1 contract
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 7.8 hereof is unavailable to a party that would have been an Indemnified Party indemnified party under any such section Section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party indemnifying party thereunder shall, in lieu of indemnifying such Indemnified Partyindemnified party, contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party indemnifying party on the one hand and such Indemnified Party indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party indemnifying party or such Indemnified Party indemnified party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 7.9 were determined by pro-pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)7.9. The amount paid or payable by an Indemnified Party indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 7.9 shall include 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 any provision of this Section 10(c) to the contrary, (a) no person 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 Person who was not guilty of such fraudulent misrepresentation and (b) each misrepresentation. Each Holder’s 's liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registration.
Appears in 1 contract
Samples: Warrant Purchase Agreement (Factory Card Outlet Corp)
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 7.9 hereof is unavailable to a party that would have been an Indemnified Party indemnified party under any such section Section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party indemnifying party thereunder shall, in lieu of indemnifying such Indemnified Partyindemnified party, contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party indemnifying party on the one hand and such Indemnified Party indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party indemnifying party or such Indemnified Party indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 7.9 were determined by pro-pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)7.10. The amount paid or payable by an Indemnified Party indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 7.10 shall include 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 any provision of this Section 10(c) to the contrary, (a) no person 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 Person who was not guilty of such fraudulent misrepresentation and (b) each misrepresentation. Except in the case of a Holder’s willful misconduct or fraud, such Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registration.
Appears in 1 contract
Samples: Warrant Purchase Agreement (Workflow Management Inc)
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) 8 hereof is unavailable to a party that would have been an Indemnified Party under any such section in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each party that would have been an Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or such Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 10(c) 9 were determined by pro-rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c)9. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 10(c) 9 shall include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding any provision of this Section 10(c) 9 to the contrary, (a) no person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registration.
Appears in 1 contract
Samples: Registration Rights Agreement (National Investment Managers Inc.)
Contribution in Lieu of Indemnification. If the indemnification provided for in Section 10(b) hereof this ss.7.7 from the Indemnifying Party is unavailable to a party that would have been an Indemnified Party under any such section hereunder in respect of any losses, claims, damages damages, liabilities or liabilities expense (or actions in respect thereof) referred to therein, then each party that would have been an the Indemnifying Party thereunder shall, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other indemnified parties in connection with the statements or omissions actions which resulted in such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of such indemnifying and indemnified parties shall be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact fact, has been made by, or the omission or alleged omission to state a material fact relates to information supplied by the by, such Indemnifying Party or such Indemnified Party indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and each action; PROVIDED, HOWEVER, that in no event shall the liability of any Holder hereunder be greater in amount than the difference between the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities agree that it would not be just giving rise to such contribution obligation and equitable if contribution pursuant all amounts previously contributed by such Holder with respect to this Section 10(c) were determined by pro-rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(c). The amount paid or payable by an Indemnified Party as a result of the such losses, claims, damages or damages, liabilities (or actions in respect thereof) and expenses referred to above in this Section 10(c) shall include be deemed to include, any legal or other fees or expenses reasonably incurred by such Indemnified Party party in connection with investigating any investigation or defending any such action or claim. Notwithstanding any provision of this Section 10(c) to the contrary, (a) 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 and (b) each Holder’s liability hereunder with respect to any particular registration shall be limited to an amount equal to the net proceeds received by such Holder from the Registrable Securities sold by such Holder in such registrationproceeding.
Appears in 1 contract
Samples: Warrant Purchase Agreement (Outsource International Inc)
