Indemnification by the Corporation. Except as provided in Section 5.04, the Corporation shall, and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless the LLC, each Person in the LLC Group and each of their respective members, managers, directors, officers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “LLC Indemnitees”), from and against any and all Liabilities of the LLC Indemnitees relating to, arising out of or resulting from any of the following items without duplication and including, without limitation, any such Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest: the failure of the Corporation or any other Person in the Corporation Group or any other Person to pay, perform or otherwise promptly discharge any Contributed Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the Corporation or any Person in the Corporation Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions; any untrue statement or alleged untrue statement of a material fact contained in any registration statement (or any amendment thereto) relating to such registration, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the IPO Registration Statement or Prospectus or any other document filed by the Corporation or any Person in the Corporation Group, including all documents incorporated therein by reference, with the Securities and Exchange Commission or otherwise used in connection with the IPO or the transactions contemplated thereby (collectively, the “IPO Documents”), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In connection with the foregoing, the Corporation shall, and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless each LLC Indemnitee: against any and all losses, liabilities, claims, damages, judgments and reasonable expenses whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, or of any other claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Corporation; and against any and all reasonable expense whatsoever, as incurred (including reasonable fees and disbursements of counsel) incurred in investigating, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (iii) above. provided, however, that the indemnity contained in this subparagraph (iii) does not apply to any LLC Indemnitee with respect to any loss, liability, claim, damage, judgment or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission (A) made in reliance upon and in conformity with written information furnished to the Corporation by such LLC Indemnitee expressly for use in an IPO Document or (B) if such untrue statement or omission or alleged untrue statement or omission was corrected in an amended or supplemented registration statement or prospectus and the Corporation had furnished copies thereof to the LLC Indemnitee from which the Person asserting such loss, liability, claim, damage, judgment or expense purchased the securities that are the subject thereof on a timely basis prior to the date of sale by such LLC Indemnitee to such Person. Notwithstanding anything to the contrary herein, in no event will any LLC Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Excluded Liabilities. Indemnification by the LLC. Except as provided in Section 5.04, the LLC shall, and shall cause each of its Subsidiaries that is in the LLC Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless the Corporation, each Person in the Corporation Group, each shareholder of the Corporation that was a member of the LLC at the time of the Separation, and each of their respective directors, officers, managers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Corporation Indemnitees”), from and against any and all Liabilities of the Corporation Indemnitees relating to, arising out of or resulting from any of the following items (without duplication and including, without limitation, any Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest): the failure of the LLC or any other Person in the LLC Group or any other Person to pay, perform or otherwise promptly discharge any Excluded Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the LLC or any Person in the LLC Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions. Notwithstanding anything to the contrary herein, in no event will any Corporation Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Contributed Liabilities.
Appears in 1 contract
Samples: Separation Agreement (DreamWorks Animation SKG, Inc.)
Indemnification by the Corporation. Except as provided in Section 5.04, the 11.1 The Corporation shall, covenants and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, agrees to jointly and severally indemnify, defend indemnify and hold harmless the LLC, each Person in the LLC Group Underwriters and each of their respective members, managers, directors, officers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “LLC Indemnitees”), from and against any and all Liabilities of the LLC Indemnitees relating to, arising out of or resulting from any of the following items without duplication and including, without limitation, any such Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest: the failure of the Corporation or any other Person in the Corporation Group or any other Person to pay, perform or otherwise promptly discharge any Contributed Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the Corporation or any Person in the Corporation Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions; any untrue statement or alleged untrue statement of a material fact contained in any registration statement (or any amendment thereto) relating to such registration, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the IPO Registration Statement or Prospectus or any other document filed by the Corporation or any Person in the Corporation Group, including all documents incorporated therein by reference, with the Securities and Exchange Commission or otherwise used in connection with the IPO or the transactions contemplated thereby (collectively, the “IPO Documents”), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In connection with the foregoing, the Corporation shall, and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless each LLC Indemnitee: against any and all losses, liabilities, claims, damages, judgments and reasonable expenses whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, or of any other claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Corporation; and against any and all reasonable expense whatsoever, as incurred (including reasonable fees and disbursements of counsel) incurred in investigating, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (iii) above. provided, however, that the indemnity contained in this subparagraph (iii) does not apply to any LLC Indemnitee with respect to any loss, liability, claim, damage, judgment or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission (A) made in reliance upon and in conformity with written information furnished to the Corporation by such LLC Indemnitee expressly for use in an IPO Document or (B) if such untrue statement or omission or alleged untrue statement or omission was corrected in an amended or supplemented registration statement or prospectus and the Corporation had furnished copies thereof to the LLC Indemnitee from which the Person asserting such loss, liability, claim, damage, judgment or expense purchased the securities that are the subject thereof on a timely basis prior to the date of sale by such LLC Indemnitee to such Person. Notwithstanding anything to the contrary herein, in no event will any LLC Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Excluded Liabilities. Indemnification by the LLC. Except as provided in Section 5.04, the LLC shall, and shall cause each of its Subsidiaries that is in the LLC Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless the Corporation, each Person in the Corporation Group, each shareholder of the Corporation that was a member of the LLC at the time of the SeparationAffiliates, and each of their respective directors, officers, managers and managers, members, partners, employees, agents, advisors, shareholders and each of the heirs, executors, successors and assigns of other person controlling an Underwriter or any of the foregoing their respective Affiliates (individually, an “Indemnified Party” and collectively, the “Corporation IndemniteesIndemnified Parties”), ) from and against any and all Liabilities losses, damages, liabilities, claims, actions, suits, proceedings or expenses (“Claims,” and each a “Claim”), joint or several, to which any Indemnified Party may become subject:
(a) in connection with, related to or arising out of:
(i) oral or written information provided by or at the request of the Corporation, its Affiliates or their respective directors, officers, employees or agents, which information either they or any Indemnified Party provide to any actual or potential purchasers, sellers, investors or offerees or;
(ii) any other action or failure to act by the Corporation, its Affiliates or their respective directors, officers, employees or agents, or by any Indemnified Party at the Corporation’s request or with the Corporation’s consent, or
(b) otherwise in connection with, related to or arising out of the Offering, the engagement of the Underwriters pursuant to this Agreement (including modifications or future additions to such engagement and related activities prior to the date of this Agreement), or the performance by the Underwriters of the services or any transactions contemplated by this Agreement.
11.2 Notwithstanding the foregoing provisions of section 11.1, the Corporation Indemnitees will not be responsible to indemnify an Indemnified Party for any Claim referred to in section 11.1 above or to reimburse expenses relating thereto, if such Claim is judicially determined by final non-appealable order issued by a court of competent jurisdiction to have resulted solely from the gross negligence or wilful misconduct of such Indemnified Party. For greater certainty, the foregoing shall not disentitle an Underwriter from claiming indemnification hereunder to the extent that the gross negligence, if any, relates to the Underwriters’ failure to conduct adequate “due diligence”.
11.3 The Corporation agrees that, without the prior written consent of the Indemnified Party affected, it will not settle, compromise or consent to the entry of any judgment in any pending or threatened Claim, action or proceeding in respect of which indemnification could be sought under the indemnification provisions of this Agreement (whether or not the Underwriters or any Indemnified Party is an actual or potential party to such Claim), unless such settlement, compromise or consent includes an unconditional release of each Indemnified Party from all liability arising out of such Claim and the Underwriters’ engagement and conduct in connection therewith.
11.4 In the event that any Indemnified Party is requested or authorized by the Corporation or is required by government regulation, subpoena, or other legal process to produce Underwriters’ documents as evidence or personnel as witnesses with respect to the Underwriters’ services for the Corporation, the Corporation will reimburse the Underwriters for their professional time and expenses, including, without limitation, the fees and expenses of its counsel, on a full indemnity basis, incurred in responding to such requests. The Corporation will promptly reimburse Indemnified Parties for expenses (including, without limitation counsel fees and expenses on a full indemnity basis) as they are incurred in connection with enforcing this Agreement.
11.5 Promptly after receipt of notice of the commencement of any Claim against any Indemnified Party or after receipt of notice of the commencement of any investigation which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Corporation, the Indemnified Parties will notify the Corporation in writing of the commencement thereof (provided that any delay or failure in so notifying shall not prejudice the Indemnified Parties’ rights hereunder, except to the extent that such failure results in forfeiture by the Corporation of substantive rights or defenses) and, throughout the course thereof, will provide copies of all relevant documentation to the Corporation, will keep the Corporation advised of the progress thereof and will discuss with the Corporation all significant actions proposed. The Corporation shall be entitled, at its own expense, to participate in and, to the extent it may wish to do so, assume the defence thereof, provided such defence is conducted by experienced and competent counsel. Upon the Corporation notifying the Indemnified Party in writing of its election to assume the defence and retaining counsel, the Corporation shall not be liable to the Indemnified Party for any legal expenses subsequently incurred by them in connection with such defence. If such defence is assumed by the Corporation, the Corporation throughout the course thereof will provide copies of all relevant documentation to the Indemnified Party, will keep the Indemnified Party advised of the progress thereof and will discuss with the Indemnified Party all significant actions proposed.
11.6 Notwithstanding the foregoing provisions of section 11.5, the Indemnified Party shall have the right, at the Corporation’s expense, to employ counsel of the Indemnified Party’s choice, in respect of the defence of any action, suit, proceeding, Claim or investigation if:
(a) the employment of such counsel has been authorized by the Corporation;
(b) the Corporation has not assumed the defence and employed counsel therefor within 14 days after receiving notice of such Claim; or
(c) counsel retained by the Corporation or the Indemnified Party has advised the Indemnified Party that representation of both parties by the same counsel would be inappropriate for any reason, including without limitation because there may be legal defences available to the Indemnified Party which are different from or in addition to those available to the Corporation (in which event and to that extent, the Corporation shall not have the right to assume or direct the defence on the Indemnified Party’s behalf) or that there is a conflict of interest between the Corporation and the Indemnified Party or the subject matter of the action, suit, proceeding, Claim or investigation may not fall within the indemnity set forth herein (in either of which events the Corporation shall not have the right to assume or direct the defence on the Indemnified Party’s behalf).
11.7 In no event shall any Indemnified Party have any liability (whether direct or indirect, in contract or tort or otherwise) to the Corporation or any of its Affiliates, security holders or creditors related to, arising out of or resulting from any of in connection with the following items (without duplication and includingUnderwriters’ engagement, without limitation, any Liabilities asserted by way of setoff, counterclaim or defense or enforcement performance of any Security Interest): the failure of the LLC service in connection therewith or any transaction contemplated thereby, other Person in the LLC Group or any other Person to pay, perform or otherwise promptly discharge any Excluded Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the LLC or any Person in the LLC Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions. Notwithstanding anything to the contrary herein, in no event will any Corporation Indemnitee have the right to seek indemnification from any Person in the Corporation Group than with respect to any claim Claim that is judicially determined by final non- appealable order issued by a court of competent jurisdiction to have resulted solely from such Indemnified Party’s gross negligence or demand against any Person in wilful misconduct. Neither party shall be liable to the LLC Group other for the satisfaction consequential, incidental, indirect, punitive or special damages (including loss of profits, data, business or goodwill), regardless of the Contributed Liabilitieslegal theory advanced or of any notice given as to the likelihood of such damages; provided that (a) this provision shall not limit an Indemnified Party’s indemnity or contribution rights as provided for in this Agreement or applicable law and (b) damages required to be paid by an Indemnified Party to any third party that is not an Indemnified Party may be considered direct damages to such Indemnified Party. The Corporation’s recourse with respect to any liability or obligation of the Underwriters hereunder shall be limited to the assets of the Underwriters, and the Corporation shall have no recourse against, and expressly waives its right to bring any Claim against, any other Indemnified Party or any of their assets.
11.8 With respect to any of their respective related Indemnified Parties who are not parties to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this section 11 and section 12 in trust for and on behalf of such Indemnified Parties and the Underwriters agree to accept such trust and to hold the benefit of and enforce performance of such covenants on behalf of such persons.
11.9 The rights and remedies of the Underwriters set forth in this section 11, section 12 and section 16 of this Agreement are to the fullest extent possible in law cumulative and not alternative and the election by any Underwriter to exercise any such right or remedy shall not be, and shall not be deemed to be, a waiver of any of the other of such rights and remedies.
Appears in 1 contract
Samples: Underwriting Agreement (Gold Standard Ventures Corp.)
Indemnification by the Corporation. Except as provided in Section 5.04, the (a) The Corporation shall, agrees to indemnify and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold save harmless the LLCAgent and its affiliates (for the purposes of this Section 12, each Person in references to the LLC Group Agent shall be deemed to include the Agent’s affiliates) and each of any Selling Firms and their respective members, managers, directors, officers and officers, employees, partners, agents, advisors and each of the heirs, executors, successors and assigns of any of the foregoing shareholders (collectively, the “LLC Indemnitees”)"Indemnified Parties" and individually, an "Indemnified Party") from and against any and all Liabilities losses (other than loss of profit), expenses, claims, actions, suits, proceedings, damages, liabilities or expenses of whatsoever nature or kind, including the LLC Indemnitees relating toaggregate amount paid in reasonable settlement of any actions, arising out suits, proceedings, investigations or claims and the reasonable fees, disbursements and taxes of their counsel (collectively, "Losses") in connection with any action, suit, proceeding, investigation or resulting from any of the following items without duplication and claim (including, without limitation, security holder or derivative actions, arbitration proceedings or otherwise) that may be made or threatened against any such Liabilities asserted by way of setoffIndemnified Party or in enforcing this indemnity (collectively, counterclaim or defense or enforcement of any Security Interest: the failure of the Corporation or any other Person in the Corporation Group or any other Person "Claims") to pay, perform which an Indemnified Party may become subject or otherwise promptly discharge involved in any Contributed Liabilities in accordance with their respective termscapacity insofar as the Claims relate to, whether prior to are caused by, result from, arise out of or after the Separation Date; any material breach by the Corporation are based upon, directly or any Person in the Corporation Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions; indirectly:
(i) any untrue statement or alleged untrue statement of a material fact contained in any registration statement (or any amendment thereto) relating to such registration, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the IPO Registration Statement information (whether written or Prospectus oral) supplied to any prospective Subscriber by or any other document filed by on behalf of the Corporation or any Person in the Corporation Group, including all documents incorporated therein by reference, with the Securities and Exchange Commission or otherwise used in connection with the IPO or the transactions contemplated thereby (collectively, the “IPO Documents”), or the omission or alleged omission therefrom of to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading. In , or
(ii) the services provided by the Agent hereunder or under the engagement letter entered into between the Agent and the Corporation dated February 6, 2020, and to reimburse each Indemnified Party forthwith, upon demand, for any legal or other expenses reasonably incurred by such Indemnified Party in connection with any Claim, provided, however that this indemnity shall not apply in respect of the foregoingAgent or the Indemnified Parties to the extent that a court of competent jurisdiction in a final judgment that has become non-appealable shall determine that: (A) the Agent or Indemnified Party has been negligent or have committed any fraudulent act or wilful misconduct in the course of such performance; and (B) the expenses, losses, claims, damages or liabilities, as to which indemnification is claimed, were directly or indirectly caused by the negligence, fraudulent act or wilful misconduct referred to in (A). If for any reason (other than the occurrence of any of the events itemized in (A) and (B) above), the foregoing indemnification is unavailable to the Agent or insufficient to hold it harmless, then the Corporation shall contribute to the amount paid or payable by the Agent as a result of such expense, loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Corporation on the one hand and the Agent on the other hand but also the relative fault of the Corporation and the Agent, as well as any relevant equitable considerations; provided that the Corporation shall, and in any event, contribute to the amount paid or payable by the Agent as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Agent hereunder pursuant to the Agreement to which this indemnity is attached. The Corporation agrees that in case any legal proceeding shall cause each of its Subsidiaries that is in be brought against the Corporation Group as of and/or the Separation Date, to jointly and severally indemnify, defend and hold harmless each LLC Indemnitee: against any and all losses, liabilities, claims, damages, judgments and reasonable expenses whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, investigation or proceeding Agent by any governmental agency commission or bodyregulatory authority or any stock exchange or other entity having regulatory authority, commenced either domestic or threatened, or of any other claim whatsoever based upon any such untrue statement or omissionforeign, or any such alleged untrue statement or omission, if such settlement is effected with entity shall investigate the written consent Corporation and/or the Agent and any Indemnified Parties of the Corporation; Agent shall be required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Corporation by the Agent, the Agent shall have the right to employ its own counsel in connection therewith, and against any and all reasonable expense whatsoever, as incurred (including the reasonable fees and disbursements expenses of counselsuch counsel as well as the reasonable costs (including an amount to reimburse the Agent for time spent by its Indemnified Parties in connection therewith) and out-of-pocket expenses incurred by its Indemnified Parties in investigatingconnection therewith shall be paid by the Corporation as they occur.
(b) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party or after receipt of notice of the commencement of any investigation, preparing which is based, directly or defending against any litigationindirectly, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omissionmatter in respect of which indemnification may be sought from the Corporation, or the Agent will notify the Corporation in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Corporation, will keep the Corporation advised of the progress thereof and will discuss with the Corporation all significant actions proposed. The omission so to notify the Corporation shall not relieve the Corporation of any such alleged untrue statement or omission, liability which the Corporation may have to the Agent except only to the extent that any such expense delay in giving or failure to give notice as herein required materially prejudices the defence of such action, suit, proceeding, claim or investigation or results in any material increase in the liability which the Corporation would otherwise have under this indemnity had the Agent not so delayed in giving or failed to give the notice required hereunder.
(c) The Corporation shall be entitled, at its own expense, to participate in and, to the extent it may wish to do so, assume the defence thereof, provided such defence is conducted by experienced and competent counsel. Upon the Corporation notifying the Agent in writing of its election to assume the defence and retaining counsel, the Corporation shall not paid under subparagraph be liable to the Agent for any legal expenses subsequently incurred by them in connection with such defence. If such defence is assumed by the Corporation, the Corporation throughout the course thereof will provide copies of all relevant documentation to the Agent, will keep the Agent advised of the progress thereof and will discuss with the Agent all significant actions proposed.
(d) Notwithstanding the foregoing paragraph, the Agent shall have the right, at the Corporation's expense, to employ counsel of the Agent's choice, in respect of the defence of any action, suit, proceeding, claim or investigation if: (i) the employment of such counsel has been authorized by the Corporation; or (ii) the Corporation has not assumed the defence and employed counsel therefor within a reasonable time after receiving notice of such action, suit, proceeding, claim or investigation; or (iii) above. providedcounsel retained by the Corporation or the Agent have advised the Agent that representation of both parties by the same counsel would be inappropriate for any reason, however, that the indemnity contained in this subparagraph (iii) does not apply to any LLC Indemnitee with respect to any loss, liability, claim, damage, judgment or expense including without limitation because there may be legal defences available to the extent arising out of any untrue statement Agent, or omission to the Agent, which are different from or alleged untrue statement or omission (A) made in reliance upon and in conformity with written information furnished addition to those available to the Corporation by such LLC Indemnitee expressly for use (in an IPO Document or (B) if such untrue statement or omission or alleged untrue statement or omission was corrected in an amended or supplemented registration statement or prospectus which event and to that extent, the Corporation had furnished copies thereof to the LLC Indemnitee from which the Person asserting such loss, liability, claim, damage, judgment or expense purchased the securities that are the subject thereof on a timely basis prior to the date of sale by such LLC Indemnitee to such Person. Notwithstanding anything to the contrary herein, in no event will any LLC Indemnitee shall not have the right to seek indemnification from any Person in assume or direct the defence on the Agent's behalf) or that there is an actual or potential conflict of interest between the Corporation Group with respect to any and the Agent or between the Agent or the subject matter of the action, suit, proceeding, claim or demand against any Person investigation may not fall within the indemnity set forth herein (in the LLC Group for the satisfaction either of the Excluded Liabilities. Indemnification by the LLC. Except as provided in Section 5.04, the LLC shall, and shall cause each of its Subsidiaries that is in the LLC Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless the Corporation, each Person in which events the Corporation Group, each shareholder of the Corporation that was a member of the LLC at the time of the Separation, and each of their respective directors, officers, managers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Corporation Indemnitees”), from and against any and all Liabilities of the Corporation Indemnitees relating to, arising out of or resulting from any of the following items (without duplication and including, without limitation, any Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest): the failure of the LLC or any other Person in the LLC Group or any other Person to pay, perform or otherwise promptly discharge any Excluded Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the LLC or any Person in the LLC Group of this Agreement or any Ancillary Agreement that does shall not contain its own indemnification provisions. Notwithstanding anything to the contrary herein, in no event will any Corporation Indemnitee have the right to seek indemnification from assume or direct the defence on the Agent's behalf).
(e) No admission of liability and no settlement of any Person in action, suit, proceeding, claim or investigation shall be made without the consent of the Agent. No admission of liability shall be made and the Corporation Group shall not be liable for any settlement of any action, suit, proceeding, claim or investigation made without its consent.
(f) The indemnity and contribution obligations of the Corporation shall be in addition to any liability which the Corporation may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties of the Agent and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Corporation, the Agent and any of the Indemnified Parties of the Agent. The foregoing provisions shall survive the completion of professional services rendered under the letter to which this is attached or any termination of the authorization given by the letter to which this is attached.
(g) The Corporation hereby constitutes the Agent as agent and trustee for each of the Indemnified Parties of the Corporation's covenants under this indemnity with respect to any claim or demand against any Person in such persons and the LLC Group for the satisfaction Agent agrees to accept such trust and to hold and enforce such covenants on behalf of such persons.
(h) The obligations of the Contributed LiabilitiesCorporation under this Section 12 are in addition to any liabilities which the Corporation may otherwise have to the Agent or any Indemnified Party.
Appears in 1 contract
Samples: Agency Agreement
Indemnification by the Corporation. Except as provided in Section 5.04, the The Corporation shall, and shall cause each notwithstanding any termination of its Subsidiaries that is in the Corporation Group as of the Separation Datethis Agreement, to jointly and severally indemnify, defend and hold harmless the LLC(I) each Holder, each Person in the LLC Group and each of their respective its partners, members, managers, stockholders, Affiliates, and the directors, officers officers, employees and employees, and agents of each of the heirsforegoing, executors, successors and assigns (II) each Person who controls any such Holder (within the meaning of any Section 15 of the foregoing (1933 Act or Section 20 of the 1934 Act), the partners, members, managers, stockholders, Affiliates of each such controlling Person, and the directors, officers, employees and agents of each of the foregoing, collectively, the (“LLC IndemniteesHolder Covered Persons”), to the fullest extent permitted by applicable law, from and against any and all Liabilities of the LLC Indemnitees relating tolosses, arising out of or resulting from any of the following items without duplication and claims, damages, liabilities, costs (including, without limitation, any such Liabilities asserted by way reasonable costs of setoffpreparation and investigation and reasonable attorneys’ fees) and expenses (collectively, counterclaim “Damages”), as incurred, that arise out of or defense or enforcement of any Security Interest: the failure of the Corporation or any other Person in the Corporation Group or any other Person to pay, perform or otherwise promptly discharge any Contributed Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the Corporation or any Person in the Corporation Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions; are based upon any untrue statement or alleged untrue statement of a material fact contained in any registration statement (Registration Statement, any Prospectus or any form of prospectus or in any amendment thereto) or supplement thereto or in any preliminary prospectus, or arising out of or relating to such registration, including all documents incorporated therein by reference, or the any omission or alleged omission therefrom of to state a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out (in the case of any untrue statement or alleged untrue statement of a material fact contained in the IPO Registration Statement or Prospectus or any other document filed by the Corporation form of prospectus or any Person in the Corporation Group, including all documents incorporated therein by reference, with the Securities and Exchange Commission or otherwise used in connection with the IPO or the transactions contemplated thereby (collectively, the “IPO Documents”), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements thereinsupplement thereto, in the light of the circumstances under which they were made, ) not misleading. In connection with the foregoing, the Corporation shall, and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless each LLC Indemnitee: against any and all losses, liabilities, claims, damages, judgments and reasonable expenses whatsoever, as incurred, except to the extent of the aggregate amount paid in settlement of any litigationthat, investigation or proceeding by any governmental agency or body, commenced or threatened, or of any other claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Corporation; and against any and all reasonable expense whatsoever, as incurred (including reasonable fees and disbursements of counsel) incurred in investigating, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (iii) above. provided, however, that the indemnity contained in this subparagraph (iii) does not apply to any LLC Indemnitee with respect to any loss, liability, claim, damage, judgment or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission (A) made such untrue statements, alleged untrue statements, omissions or alleged omissions are based solely upon information regarding such Holder furnished in reliance upon and in conformity with written information furnished writing to the Corporation by such LLC Indemnitee Holder expressly for use therein, or to the extent that such information relates to such Holder or such Holder’s proposed method of distribution of Registrable Securities and was reviewed and approved by such Holder expressly for use in an IPO Document the Registration Statement, such Prospectus or such form of Prospectus or in any amendment or supplement thereto, or (B) if such untrue statement in the case of an occurrence of an event of the type specified in Section 3(a)(3)(E)-(G), related to the use by a Holder of an outdated or omission or alleged untrue statement or omission was corrected in an amended or supplemented registration statement or prospectus and defective Prospectus after the Corporation had furnished copies thereof to has notified such Holder in writing that the LLC Indemnitee from which the Person asserting such loss, liability, claim, damage, judgment Prospectus is outdated or expense purchased the securities that are the subject thereof on a timely basis defective and prior to the date of sale receipt by such LLC Indemnitee to such PersonHolder of the Advice contemplated and defined in Section 9(j) below. Notwithstanding anything to The Corporation shall notify the contrary hereinHolders promptly of the institution, threat or assertion of any proceeding arising from or in no event will any LLC Indemnitee have connection with the right to seek indemnification from any Person in transactions contemplated by this Agreement of which the Corporation Group with respect to is aware. Such indemnity shall remain in full force and effect regardless of any claim investigation made by or demand against any Person on behalf of an Indemnified Party (as defined in Section 5(c)) and shall survive the LLC Group for the satisfaction transfer of the Excluded Liabilities. Indemnification Registrable Securities by the LLC. Except as provided in Section 5.04, the LLC shall, and shall cause each of its Subsidiaries that is in the LLC Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless the Corporation, each Person in the Corporation Group, each shareholder of the Corporation that was a member of the LLC at the time of the Separation, and each of their respective directors, officers, managers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Corporation Indemnitees”), from and against any and all Liabilities of the Corporation Indemnitees relating to, arising out of or resulting from any of the following items (without duplication and including, without limitation, any Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest): the failure of the LLC or any other Person in the LLC Group or any other Person to pay, perform or otherwise promptly discharge any Excluded Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the LLC or any Person in the LLC Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions. Notwithstanding anything to the contrary herein, in no event will any Corporation Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Contributed LiabilitiesHolders.
Appears in 1 contract
Samples: Registration Rights Agreement (Equity Bancshares Inc)
Indemnification by the Corporation. Except as provided in Section 5.04, In the Corporation shall, and shall cause each event of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless the LLC, each Person in the LLC Group and each of their respective members, managers, directors, officers and employees, and each of the heirs, executors, successors and assigns any registration of any of the foregoing (collectivelyCorporation's securities under the Securities Act pursuant to Section 2.1, the “LLC Indemnitees”Corporation shall indemnify and hold harmless each of the following parties as described in this Agreement: (i) the seller of such securities; (ii) each underwriter (as defined in the Securities Act) who makes an underwriting agreement with the Corporation or Holders pursuant to the foregoing terms of this Agreement; (iii) each other Person who is a partner or affiliate or agent of such seller and who participates in the offering of such securities; and (iv) each other Person, if any, who controls (within the meaning of the Securities Act) such seller, underwriter or participating Person against any losses, claims, damages or liabilities (collectively the "liability"), from and against joint or several, to which such seller, underwriter, participating Person or controlling Person may become subject under the Securities Act or any and all Liabilities of the LLC Indemnitees relating toother statute or at common law, arising if such liability (or action in respect thereof) arises out of or resulting from is based upon (i) any of the following items without duplication and including, without limitation, any such Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest: the failure of the Corporation or any other Person in the Corporation Group or any other Person to pay, perform or otherwise promptly discharge any Contributed Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the Corporation or any Person in the Corporation Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions; any untrue statement or alleged untrue statement of a any material fact contained in any registration statement (under which such securities were registered under the Securities Act, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereto) relating to such registration, including all documents incorporated therein by reference, or the omission or (ii) any alleged omission therefrom of to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out misleading. Except as otherwise provided in paragraph (d) of any untrue statement or alleged untrue statement of a material fact contained in the IPO Registration Statement or Prospectus or any other document filed by this Section 2.4, the Corporation shall reimburse each such seller, underwriter, participating Person or any such controlling Person in the Corporation Group, including all documents incorporated therein by reference, with the Securities and Exchange Commission or otherwise used in connection with the IPO or the transactions contemplated thereby (collectively, the “IPO Documents”), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In connection with the foregoing, the Corporation shall, and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless each LLC Indemnitee: against any and all losses, liabilities, claims, damages, judgments and reasonable expenses whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, or of any other claim whatsoever based upon defending any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Corporation; and against any and all reasonable expense whatsoever, as incurred (including reasonable fees and disbursements of counsel) incurred in investigating, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (iii) above. provided, however, that the indemnity contained in this subparagraph (iii) does not apply to any LLC Indemnitee with respect to any loss, liability, claim, damage, judgment or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission (A) made in reliance upon and in conformity with written information furnished to the Corporation by such LLC Indemnitee expressly for use in an IPO Document or (B) if such untrue statement or omission or alleged untrue statement or omission was corrected in an amended or supplemented registration statement or prospectus and the Corporation had furnished copies thereof to the LLC Indemnitee from which the Person asserting such loss, liability, claim, damage, judgment or expense purchased the securities that are the subject thereof on a timely basis prior to the date of sale by such LLC Indemnitee to such Person. Notwithstanding anything to the contrary herein, in no event will however, the Corporation shall not be liable to any LLC Indemnitee have the right to seek indemnification from any seller, underwriter, participating Person, or controlling Person in the Corporation Group with respect to any claim or demand against such case if any Person in the LLC Group for the satisfaction of the Excluded Liabilities. Indemnification by the LLC. Except as provided in Section 5.04, the LLC shall, and shall cause each of its Subsidiaries that is in the LLC Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless the Corporation, each Person in the Corporation Group, each shareholder of the Corporation that was a member of the LLC at the time of the Separation, and each of their respective directors, officers, managers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Corporation Indemnitees”), from and against any and all Liabilities of the Corporation Indemnitees relating to, arising such liability arises out of or resulting from is based upon any alleged untrue statement or alleged omission made in such registration statement, preliminary or final prospectus, or amendment or supplement thereto (i) in reliance upon and in conformity with information furnished to the Corporation by such Person specifically for use in such registration statement, preliminary or final prospectus or amendment or supplement thereto, or (ii) based on the authority of an "expert" within the following items (without duplication and including, without limitation, any Liabilities asserted by way meaning of setoff, counterclaim or defense or enforcement of any Security Interest): the failure of the LLC or any other Person that term as defined in the LLC Group or any other Person to pay, perform or otherwise promptly discharge any Excluded Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the LLC or any Person in the LLC Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions. Notwithstanding anything to the contrary herein, in no event will any Corporation Indemnitee have the right to seek indemnification from any Person in Securities Act (but only if the Corporation Group with respect had no reasonable ground to any claim or demand against any Person in believe, and did not believe, that the LLC Group for the satisfaction of the Contributed Liabilities.statements 339\GUM-TECH\REGISTER
Appears in 1 contract
Samples: Registration Rights Agreement (Gumtech International Inc \Ut\)
Indemnification by the Corporation. Except as provided in Section 5.04In the event of any registration under the Securities Act pursuant to this Agreement of shares of Registrable Securities held by Hall, the Corporation shallwill hold harmless Hall and each person, and shall cause each of its Subsidiaries that is in if any, who controls Hall within the Corporation Group as meaning of the Separation DateSecurities Act, against any losses, claims, damages or liabilities (including legal fees and costs of court), joint or several, to jointly and severally indemnifywhich Hall or such controlling person may become subject under the Securities Act or otherwise, defend and hold harmless the LLCinsofar as such losses, each Person claims, damages or liabilities (or actions in the LLC Group and each of their respective members, managers, directors, officers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “LLC Indemnitees”), from and against any and all Liabilities of the LLC Indemnitees relating to, arising respect thereof) arise out of or resulting from any of the following items without duplication and including, without limitation, any such Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest: the failure of the Corporation or any other Person in the Corporation Group or any other Person to pay, perform or otherwise promptly discharge any Contributed Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the Corporation or any Person in the Corporation Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions; are based upon any untrue statement or alleged untrue statement of a any material fact contained contained, on the effective date thereof, in any registration statement (under which such Registrable Securities were registered under the Securities Act, any final prospectus contained therein, or any amendment or supplement thereto) relating to such registration, including all documents incorporated therein by reference, or arise out of or are based upon the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading misleading; and will reimburse Hall and each such controlling person for any legal or arising any other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage or liability; provided, the Corporation shall not be liable to any Hall or such controlling persons in any such case to the extent that any such loss, claim, damage or liability arises out of any or is based upon an untrue statement or alleged untrue statement of a material fact contained in the IPO Registration Statement or Prospectus or any other document filed by the Corporation or any Person in the Corporation Group, including all documents incorporated therein by reference, with the Securities and Exchange Commission or otherwise used in connection with the IPO or the transactions contemplated thereby (collectively, the “IPO Documents”), or the omission or alleged omission therefrom of a material fact necessary made in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In connection with the foregoing, the Corporation shall, and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless each LLC Indemnitee: against any and all losses, liabilities, claims, damages, judgments and reasonable expenses whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, or of any other claim whatsoever based upon any such untrue registration statement or omission, final prospectus or any such alleged untrue statement amendment or omission, if such settlement is effected with the written consent of the Corporation; and against any and all reasonable expense whatsoever, as incurred (including reasonable fees and disbursements of counsel) incurred in investigating, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (iii) above. provided, however, that the indemnity contained in this subparagraph (iii) does not apply to any LLC Indemnitee with respect to any loss, liability, claim, damage, judgment or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission (A) made supplement in reliance upon and in conformity with written information furnished to the Corporation through a written instrument duly executed by Hall or such LLC Indemnitee expressly controlling person specifically for use in an IPO Document or (B) if such untrue statement or omission or alleged untrue statement or omission was corrected in an amended or supplemented registration statement or prospectus and the Corporation had furnished copies thereof to the LLC Indemnitee from which the Person asserting such loss, liability, claim, damage, judgment or expense purchased the securities that are the subject thereof on a timely basis prior to the date of sale by such LLC Indemnitee to such Person. Notwithstanding anything to the contrary herein, in no event will any LLC Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Excluded Liabilities. Indemnification by the LLC. Except as provided in Section 5.04, the LLC shall, and shall cause each of its Subsidiaries that is in the LLC Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless the Corporation, each Person in the Corporation Group, each shareholder of the Corporation that was a member of the LLC at the time of the Separation, and each of their respective directors, officers, managers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Corporation Indemnitees”), from and against any and all Liabilities of the Corporation Indemnitees relating to, arising out of or resulting from any of the following items (without duplication and including, without limitation, any Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest): the failure of the LLC or any other Person in the LLC Group or any other Person to pay, perform or otherwise promptly discharge any Excluded Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the LLC or any Person in the LLC Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions. Notwithstanding anything to the contrary herein, in no event will any Corporation Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Contributed Liabilitiespreparation thereof.
Appears in 1 contract
Samples: Registration Rights Agreement (First Sierra Financial Inc)
Indemnification by the Corporation. Except as provided in Section 5.04(a) In connection with any Demand Registration and/or Piggyback Registration that includes Registrable Securities, the Corporation shall, and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend indemnify and hold harmless the LLC, each Person in the LLC Group Holders and their Affiliates and each of their respective members, managers, directors, officers officers, employees and employees, agents and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “LLC Indemnitees”)underwriters, from and against any loss (excluding loss of profits), liability, claim, damage and all Liabilities expense whatsoever (including reasonable legal fees and expenses) as incurred, including any amounts paid in settlement of the LLC Indemnitees relating toany investigation, order, litigation, proceeding or claim, joint or several, as incurred (collectively, “Losses”), arising out of or resulting from any of the following items without duplication and including, without limitation, any such Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest: the failure of the Corporation or any other Person in the Corporation Group or any other Person to pay, perform or otherwise promptly discharge any Contributed Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the Corporation or any Person in the Corporation Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions; based on any untrue statement or omission of a material fact, or alleged untrue statement or omission of a material fact fact, contained in any registration statement (Prospectus or Registration Statement or marketing materials, or any amendment or supplement thereto) relating to such registration, including all documents incorporated therein by referencereference therein, or the any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of misleading, any untrue statement violation or alleged untrue statement of a material fact contained in the IPO Registration Statement or Prospectus or any other document filed violation by the Corporation of Canadian Securities Laws or any Person in U.S. Securities Laws, provided that:
(i) the Corporation Group, including all documents incorporated therein by reference, with the Securities and Exchange Commission or otherwise used in connection with the IPO or the transactions contemplated thereby (collectively, the “IPO Documents”), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances shall not be liable under which they were made, not misleading. In connection with the foregoing, the Corporation shall, and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless each LLC Indemnitee: against this Section 5.1(a) for any and all losses, liabilities, claims, damages, judgments and reasonable expenses whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigationaction effected without its written consent, investigation which consent shall not be unreasonably withheld or proceeding by any governmental agency or body, commenced or threatened, or delayed; and
(ii) the indemnity provided for in this Section 5.1(a) in respect of any other claim whatsoever based upon any such untrue statement or omissionHolder, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Corporation; and against any and all reasonable expense whatsoever, as incurred (including reasonable fees and disbursements of counsel) incurred in investigating, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (iii) above. provided, however, that the indemnity contained in this subparagraph (iii) does shall not apply to any LLC Indemnitee with respect to any loss, liability, claim, damage, judgment or expense Losses to the extent arising out of or based upon any untrue statement or omission or alleged untrue statement or omission (A) made in reliance upon and in conformity with written information furnished to the Corporation by such LLC Indemnitee expressly or on behalf of a Holder or underwriter for use in an IPO Document the Prospectus, Registration Statement or marketing materials.
(Bb) if such untrue statement or omission or alleged untrue statement or omission was corrected in an amended or supplemented registration statement or prospectus and Any amounts advanced by the Corporation had furnished copies thereof to the LLC Indemnitee from which the Person asserting such loss, liability, claim, damage, judgment or expense purchased the securities that are the subject thereof on a timely basis prior an Indemnified Party pursuant to the date of sale by such LLC Indemnitee to such Person. Notwithstanding anything to the contrary herein, in no event will any LLC Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Excluded Liabilities. Indemnification by the LLC. Except as provided in Section 5.04, the LLC shall, and shall cause each of its Subsidiaries that is in the LLC Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless the Corporation, each Person in the Corporation Group, each shareholder of the Corporation that was a member of the LLC at the time of the Separation, and each of their respective directors, officers, managers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Corporation Indemnitees”), from and against any and all Liabilities of the Corporation Indemnitees relating to, arising out of or resulting from any of the following items (without duplication and including, without limitation, any Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest): the failure of the LLC or any other Person in the LLC Group or any other Person to pay, perform or otherwise promptly discharge any Excluded Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the LLC or any Person in the LLC Group 5.1(a) of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions. Notwithstanding anything as a result of such Losses shall be returned to the contrary herein, Corporation if it is finally determined by a court in no event will any Corporation Indemnitee have a judgment not subject to appeal or final review that such Indemnified Party was not entitled to indemnification by the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Contributed LiabilitiesCorporation.
Appears in 1 contract
Samples: Registration Rights Agreement (iANTHUS CAPITAL HOLDINGS, INC.)
Indemnification by the Corporation. Except as provided in Section 5.04, the (a) The Corporation shall, shall fully indemnify and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold save harmless the LLC, each Person in the LLC Group and each of their respective members, managers, directors, officers and employees, and each of the heirsUnderwriters and their respective affiliates, executorsand the respective directors, successors officers, employees and assigns of any of the foregoing agents thereof (collectively, the “LLC IndemniteesIndemnified Parties” and individually an “Indemnified Party”), ) from and against any all losses (other than losses of profit), claims, damages, liabilities, costs and all Liabilities expenses, (including the reasonable fees and expenses of the LLC Indemnitees relating toIndemnified Parties’ counsel that may be incurred in advising with respect to or defending such claim), arising in any capacity under any statute or common law or otherwise insofar as such expenses, losses, claims, damages, liabilities or actions arise out of or resulting from any are based, directly or indirectly, upon the performance of professional services rendered to the following items without duplication and Corporation by the Indemnified Parties or otherwise in connection with the matters referred to in this Agreement, including, without limitation, in any such Liabilities asserted way caused by, or arising directly or indirectly from, or in consequence of caused by way of setoffor arising directly or indirectly from or in consequence of:
(i) the breach of, counterclaim or defense default under, any term, condition, covenant or enforcement of any Security Interest: the failure agreement of the Corporation made or contained herein or in any other Person in document of the Corporation Group delivered pursuant hereto or any other Person to pay, perform or otherwise promptly discharge any Contributed Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach made by the Corporation or any Person in the Corporation Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions; any untrue statement or alleged untrue statement of a material fact contained in any registration statement (or any amendment thereto) relating to such registration, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the IPO Registration Statement or Prospectus or any other document filed by the Corporation or any Person in the Corporation Group, including all documents incorporated therein by reference, with the Securities and Exchange Commission or otherwise used in connection with the IPO or the transactions contemplated thereby (collectively, the “IPO Documents”), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light sale of the circumstances under which they were made, not misleading. In Offered Debentures or any representation or warranty of the Corporation made or contained herein or in any other document of the Corporation delivered pursuant hereto or in connection with the foregoingsale of the Offered Debentures being or being alleged to be untrue, false or misleading;
(ii) any negligence or wilful misconduct by the Corporation shall, and shall cause each of its Subsidiaries that is in relating to or connected with the sale by the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless each LLC Indemnitee: against any and all losses, liabilities, claims, damages, judgments and reasonable expenses whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, or of any other claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Corporation; and against any and all reasonable expense whatsoever, as incurred (including reasonable fees and disbursements of counsel) incurred in investigating, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph Offered Debentures;
(iii) above. provided, however, that the indemnity contained in this subparagraph any information or statement (iii) does not apply to except any LLC Indemnitee with respect to any loss, liability, claim, damage, judgment or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission (A) made in reliance upon and in conformity with written information furnished to the Corporation by such LLC Indemnitee the Underwriters expressly for use in an IPO Document the Offering Documents) contained in the Offering Documents filed in connection with the sale of the Offered Debentures pursuant to the Offering (including, for greater certainty, any of the Documents Incorporated by Reference and any Subsequent Disclosure Documents) or any certificate of the Issuer delivered under this Agreement which at the time and in light of the circumstances in which it was made contains or is alleged to contain a misrepresentation;
(Biv) if any omission or alleged omission to state in any of the Offering Documents (including, for greater certainty, the Documents Incorporated by Reference and any Subsequent Disclosure Documents) or in any certificate of the Corporation delivered under this Agreement or pursuant to this Agreement any (except any statement made in reliance upon and in conformity with written information furnished to the Corporation by the Underwriters expressly for use in the Offering Documents), required to be stated in such untrue document or necessary to make any statement in such document not misleading in light of the circumstances under which it was made;
(v) any order made or enquiry, investigation or proceedings commenced or threatened by any securities regulator or other competent authority, not based upon the activities or alleged activities of the Underwriters, based upon any untrue, false or misleading statement or omission or alleged untrue untrue, false or misleading statement or omission was corrected in an amended or supplemented registration statement any misrepresentation or prospectus and alleged misrepresentation made by the Corporation;
(vi) the non-compliance or alleged non-compliance by the Corporation had furnished copies thereof to the LLC Indemnitee from which the Person asserting such loss, liability, claim, damage, judgment or expense purchased the securities that are the subject thereof on a timely basis prior to the date of sale by such LLC Indemnitee to such Person. Notwithstanding anything to the contrary herein, in no event will any LLC Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Excluded Liabilities. Indemnification by the LLC. Except as provided in Section 5.04, the LLC shall, and shall cause each of its Subsidiaries that is in the LLC Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless the Corporation, each Person in the Corporation Group, each shareholder of the Corporation that was a member of the LLC at the time of the Separation, and each of their respective directors, officers, managers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Corporation Indemnitees”), from and against any and all Liabilities Securities Laws of the Qualifying Provinces or the U.S. Securities Act relating to or connected with the sale by the Corporation Indemnitees relating to, arising out of or resulting from any of the following items (without duplication and includingOffered Debentures, without limitation, including the Corporation’s non-compliance with any Liabilities asserted by way of setoff, counterclaim or defense or enforcement of statutory requirement to make any Security Interest): the failure of the LLC or any other Person in the LLC Group or any other Person to pay, perform or otherwise promptly discharge any Excluded Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the LLC or any Person in the LLC Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions. Notwithstanding anything to the contrary herein, in no event will any Corporation Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group document available for the satisfaction of the Contributed Liabilities.inspection,
Appears in 1 contract
Indemnification by the Corporation. Except as provided in (a) The Corporation (the "Indemnifying Party" with respect to indemnification under Section 5.04, the Corporation shall, 13(a)) shall fully indemnify and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold save harmless the LLC, each Person in the LLC Group and each of their respective members, managers, directors, officers and employees, and each of the heirsUnderwriters and their respective affiliates, executorstheir respective directors, successors officers, employees and assigns of any of agents, which shall include without limitation, the foregoing U.S. Dealers (collectively, the “LLC Indemnitees”"Indemnified Parties" and individually an "Indemnified Party" with respect to indemnification under Section 13(a), ) from and against any all losses (other than losses of profit), claims, actions, damages, liabilities, costs and all Liabilities expenses, (including the reasonable fees and expenses of the LLC Indemnitees Underwriters' counsel that may be incurred in advising with respect to or defending such claim), in any way caused by or arising directly or indirectly from or in consequence of:
(i) any information or statement (except information and statements furnished to the Corporation by the Underwriters relating tosolely to the Underwriters) contained in the Registration Statement, arising out of Preliminary Prospectuses, the amended Preliminary Prospectuses, the Prospectuses or resulting from any Issuer Free Writing Prospectus, including any Documents Incorporated by Reference, filed in connection with the sale of the following items without duplication and including, without limitation, Offered Shares pursuant to the Offering or any such Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest: the failure certificate of the Corporation delivered under the Agreement which at the time and in light of the circumstances in which it was made contains or is alleged to contain a misrepresentation;
(ii) any other Person in the Corporation Group or any other Person to pay, perform or otherwise promptly discharge any Contributed Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the Corporation or any Person in the Corporation Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions; any untrue statement or alleged untrue statement of a material fact contained in any registration statement (or any amendment thereto) relating to such registration, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained state in the IPO Registration Statement or Prospectus Statement, the Preliminary Prospectuses, the amended Preliminary Prospectuses, the Prospectuses or any other document filed Issuer Free Writing Prospectus, including any Documents Incorporated by Reference, or any certificate of the Corporation or delivered under the Agreement any Person in the Corporation Group, including all documents incorporated therein by reference, with the Securities and Exchange Commission or otherwise used in connection with the IPO or the transactions contemplated thereby fact (collectively, the “IPO Documents”), or the except any omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In connection with the foregoing, the Corporation shall, and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless each LLC Indemnitee: against any and all losses, liabilities, claims, damages, judgments and reasonable expenses whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, or of any other claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Corporation; and against any and all reasonable expense whatsoever, as incurred (including reasonable fees and disbursements of counsel) incurred in investigating, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (iii) above. provided, however, that the indemnity contained in this subparagraph (iii) does not apply to any LLC Indemnitee with respect to any loss, liability, claim, damage, judgment or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission (A) made in reliance upon and in conformity with written information furnished to the Corporation by such LLC Indemnitee the Underwriters expressly for use in an IPO Document the Prospectuses or the Registration Statement relating solely to the Underwriters) required to be stated in such document or necessary to make any statement in such document not misleading in light of the circumstances under which it was made;
(Biii) if such any order made or enquiry, investigation or proceeding commenced or threatened by any securities commission or other competent authority based upon any untrue statement or omission or alleged untrue statement or alleged omission was corrected in an amended or supplemented registration any misrepresentation or alleged misrepresentation (except a statement or prospectus omission or alleged statement or omission or a misrepresentation or alleged misrepresentation made in reliance upon and in conformity with written information furnished to the Corporation had furnished copies thereof to by the LLC Indemnitee from which the Person asserting such loss, liability, claim, damage, judgment or expense purchased the securities that are the subject thereof on a timely basis prior to the date of sale by such LLC Indemnitee to such Person. Notwithstanding anything to the contrary herein, in no event will any LLC Indemnitee have the right to seek indemnification from any Person Underwriters expressly for use in the Prospectuses or the Registration Statement) in the Registration Statement, the Preliminary Prospectuses, the amended Preliminary Prospectuses, the Prospectuses or any Issuer Free Writing Prospectus, including any Documents Incorporated by Reference, or based upon any failure to comply with Applicable Securities Laws (other than any failure or alleged failure to comply by the Underwriters) preventing or materially restricting the trading in or the sale of the Offered Shares in any Qualifying Province of in the United States;
(iv) the non-compliance or alleged non-compliance by the Corporation Group with any requirements of the Applicable Securities Laws or other applicable securities laws, regulations or rules including the Corporation's non-compliance with any statutory requirement to make any document available for inspection; or
(v) any breach of any representation, warranty, or covenant of the Corporation in this Agreement.
(b) Each Underwriter and U.S. Dealer (collectively, the "Indemnifying Parties" and individually the "Indemnifying Party" with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Excluded Liabilities. Indemnification by the LLC. Except as provided in indemnification under Section 5.0413(b)), the LLC shallseverally and not jointly, agrees to fully indemnify and shall cause each of its Subsidiaries that is in the LLC Group as of the Separation Date, to jointly and severally indemnify, defend and hold save harmless the Corporation, each Person in the Corporation Groupof its directors, each shareholder of its officers who signs the Corporation that was a member of the LLC at the time of the SeparationRegistration Statement, and each person who controls the Corporation within the meaning of either the 1933 Act or the 1934 Act (collectively, the "Indemnified Parties" and individually an "Indemnified Party" with respect to indemnification under Section 13(b)), to the same extent as the foregoing indemnity in Section 13(a) to each Underwriter, but only with reference to written information furnished to the Corporation relating solely to such Underwriter, by or on behalf of such Underwriter specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. With respect to Section 13(b), references to Underwriters shall be deemed to include references to U.S. Dealers.
(c) If any claim contemplated by this Section 13 shall be asserted against any of the Indemnified Parties, or if any potential claim contemplated by this Section 13 shall come to the knowledge of any of the Indemnified Parties, the Indemnified Party concerned shall notify in writing the Indemnifying Party as soon as possible of the nature of such claim (provided that any failure to so notify in respect of any potential claim shall affect the liability of the Indemnifying Party under this Section 13 only to the extent that the Indemnifying Party is materially prejudiced by such failure). The Indemnifying Party shall, subject as hereinafter provided, be entitled (but not required) to assume the defence on behalf of the Indemnified Party of any suit brought to enforce such claim; provided, however, that the defence shall be through legal counsel selected by the Indemnifying Party and acceptable to the Indemnified Party, acting reasonably and no admission of liability shall be made by the Indemnifying Party or the Indemnified Party without, in each case, the prior written consent of all the Indemnified Parties affected and the Indemnifying Party, in each case such consent not to be unreasonably withheld. An Indemnified Party shall have the right to employ separate counsel in any such suit and participate in the defence thereof but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless:
(i) the Indemnifying Party fails to assume the defence of such suit on behalf of the Indemnified Party within twenty days of receiving notice of such suit;
(ii) the employment of such counsel has been authorized by the Indemnifying Party; or
(iii) the named parties to any such suit (including any added or third parties) include the Indemnified Party and the Indemnifying Party and the Indemnified Party and the Indemnifying Party shall have been advised in writing by counsel that representation of the Indemnified Party by counsel for the Indemnifying Party is inappropriate as a result of the potential or actual conflicting interests of those represented; (in each of cases (i), (ii) or (iii), the Indemnifying Party shall not have the right to assume the defence of such suit on behalf of the Indemnified Party, but the Indemnifying Party shall only be liable to pay the reasonable fees and disbursements of one firm of separate counsel for all Indemnified Parties. In no event shall the Indemnifying Party be required to pay the fees and disbursements of more than one set of counsel for all Indemnity Parties in respect of any particular claim or set of claims). The Indemnifying Party will not, without the prior written consent of the Indemnity Parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each Indemnity Party from all liability arising out of such claim, action, suit or proceeding.
(d) The Corporation hereby acknowledges and agrees that, with respect to Sections 13 and 14 hereof, the Underwriters are contracting on their own behalf and as agents for their affiliates, directors, officers, employees and agents and their respective directors, officers, managers employees and employees, and each of the heirs, executors, successors and assigns of any of the foregoing agents (collectively, the “Corporation Indemnitees”"Beneficiaries"). In this regard, from and against any and all Liabilities each of the Underwriters shall act as trustee for the Beneficiaries of the covenants of the Corporation Indemnitees relating to, arising out of or resulting from any of the following items (without duplication under Sections 13 and including, without limitation, any Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest): the failure of the LLC or any other Person in the LLC Group or any other Person to pay, perform or otherwise promptly discharge any Excluded Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the LLC or any Person in the LLC Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions. Notwithstanding anything to the contrary herein, in no event will any Corporation Indemnitee have the right to seek indemnification from any Person in the Corporation Group 14 hereof with respect to any claim or demand against any Person in the LLC Group for the satisfaction Beneficiaries and accepts these trusts and shall hold and enforce such covenants on behalf of the Contributed LiabilitiesBeneficiaries.
Appears in 1 contract
Indemnification by the Corporation. Except as provided in Section 5.04, the (a). The Corporation shall, and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, agrees to jointly and severally indemnify, defend indemnify and hold harmless the LLC, each Person in the LLC Group and each of their respective members, managers, directors, officers and employeesInsurance Company, and each of its directors, officers, employees and agents, and each person, if any, who controls the heirs, executors, successors and assigns Insurance Company within the meaning of any Section 15 of the foregoing 1933 Act (collectively, the “LLC Indemnitees”), from and against any and all Liabilities of the LLC Indemnitees relating to, arising out of or resulting from any of the following items without duplication and including, without limitation, any such Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest: the failure of the Corporation or any other Person in the Corporation Group or any other Person to pay, perform or otherwise promptly discharge any Contributed Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the Corporation or any Person in the Corporation Group "Indemnified Parties" for purposes of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions; any untrue statement or alleged untrue statement of a material fact contained in any registration statement (or any amendment theretoSection 8.3) relating to such registration, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the IPO Registration Statement or Prospectus or any other document filed by the Corporation or any Person in the Corporation Group, including all documents incorporated therein by reference, with the Securities and Exchange Commission or otherwise used in connection with the IPO or the transactions contemplated thereby (collectively, the “IPO Documents”), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In connection with the foregoing, the Corporation shall, and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless each LLC Indemnitee: against any and all losses, liabilitiesclaims, damages, liabilities (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, at common law or otherwise, insofar as those losses, claims, damages, judgments and reasonable liabilities or expenses whatsoever(or actions in respect thereof) or settlements result from the gross negligence, as incurred, to the extent of the aggregate amount paid in settlement bad faith or willful misconduct of any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, or of any other claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent director(s) of the Corporation; , are related to the operations of the Corporation and:
(i) arise as a result of any failure by the Corporation to provide the services and against any and all reasonable expense whatsoever, as incurred furnish the materials under the terms of this Agreement (including reasonable fees a failure to comply with the diversification requirements specified in Article VI of this Agreement); or
(ii) arise out of or result from any material breach of any representation, warranty or agreement made by the Corporation in this Agreement or arise out of or result from any other material breach of this Agreement by the Corporation; as limited by, and disbursements of counselin accordance with the provisions of, Sections 8.3(b) and 8.3(c) hereof.
(b). The Corporation shall not be liable under this indemnification provision with respect to any losses, claims, damages, liabilities or litigation incurred in investigatingor assessed against an Indemnified Party that may arise from the Indemnified Party's willful misfeasance, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a partybad faith, or gross negligence in the performance of the Indemnified Party's duties or by reason of the Indemnified Party's reckless disregard of obligations and duties under this Agreement or to the Insurance Company, the Corporation, Xxxxx Distributors or the Account, whichever is applicable.
(c). The Corporation shall not be liable under this indemnification provision with respect to any claim whatsoever based made against an Indemnified Party unless the Indemnified Party shall have notified the Corporation in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon the Indemnified Party (or after the Indemnified Party shall have received notice of such service on any such untrue statement or omissiondesignated agent). Notwithstanding the foregoing, or the failure of any such alleged untrue statement or omission, Indemnified Party to give notice as provided herein shall not relieve the Corporation of its obligations hereunder except to the extent that the Corporation has been prejudiced by such failure to give notice. In addition, any failure by the Indemnified Party to notify the Corporation of any such expense claim shall not relieve the Corporation from any liability which it may have to the Indemnified Party against whom such action is not paid under subparagraph (iii) abovebrought otherwise than on account of this indemnification provision. In case any such action is brought against the Indemnified Parties, the Corporation will be entitled to participate, at its own expense, in the defense thereof. The Corporation also shall be entitled to assume the defense thereof, with counsel satisfactory to the party named in the action; provided, however, that if the indemnity contained in this subparagraph (iii) does not apply Indemnified Party shall have reasonably concluded that there may be defenses available to any LLC Indemnitee with respect it which are different from or additional to any loss, liability, claim, damage, judgment or expense those available to the extent arising out of any untrue statement or omission or alleged untrue statement or omission (A) made in reliance upon and in conformity with written information furnished to Corporation, the Corporation by such LLC Indemnitee expressly for use in an IPO Document or (B) if such untrue statement or omission or alleged untrue statement or omission was corrected in an amended or supplemented registration statement or prospectus and the Corporation had furnished copies thereof to the LLC Indemnitee from which the Person asserting such loss, liability, claim, damage, judgment or expense purchased the securities that are the subject thereof on a timely basis prior to the date of sale by such LLC Indemnitee to such Person. Notwithstanding anything to the contrary herein, in no event will any LLC Indemnitee shall not have the right to seek indemnification from assume said defense, but shall pay the costs and expenses thereof (except that in no event shall the Corporation be liable for the fees and expenses of more than one counsel for Indemnified Parties in connection with any Person one action or separate but similar or related actions in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Excluded Liabilities. Indemnification by the LLC. Except as provided in Section 5.04, the LLC shall, and shall cause each of its Subsidiaries that is in the LLC Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless the Corporation, each Person in the Corporation Group, each shareholder of the Corporation that was a member of the LLC at the time of the Separation, and each of their respective directors, officers, managers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Corporation Indemnitees”), from and against any and all Liabilities of the Corporation Indemnitees relating to, same jurisdiction arising out of the same general allegations or resulting circumstances). After notice from any the Corporation to the Indemnified Party of the following items (without duplication Corporation's election to assume the defense thereof, and includingin the absence of such a reasonable conclusion that there may be different or additional defenses available to the Indemnified Party, without limitation, any Liabilities asserted by way of setoff, counterclaim or defense or enforcement the Indemnified Party shall bear the fees and expenses of any Security Interest): additional counsel retained by it, and the failure of the LLC or any other Person in the LLC Group or any other Person Corporation will not be liable to pay, perform or otherwise promptly discharge any Excluded Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the LLC or any Person in the LLC Group of that party under this Agreement for any legal or any Ancillary Agreement other expenses subsequently incurred by that does not contain its own indemnification provisions. Notwithstanding anything to party independently in connection with the contrary herein, in no event will any Corporation Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction defense thereof other than reasonable costs of the Contributed Liabilitiesinvestigation.
Appears in 1 contract
Samples: Participation Agreement (Davis Variable Account Fund Inc)
Indemnification by the Corporation. Except as provided in In the event of any registration of any Registrable Securities under the Securities Act pursuant to Section 5.042.1 or 2.2, the Corporation shall, and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend indemnify and hold harmless the LLCseller of such securities, each Person in the LLC Group and each of their respective members, managers, its directors, officers officers, and employees, each other person who participates as an underwriter, broker or dealer in the offering or sale of such securities and each other person, if any, who controls such seller or any such participating person within the meaning of either Section 15 of the heirs, executors, successors and assigns of any Securities Act or Section 20 of the foregoing (collectivelyExchange Act, the “LLC Indemnitees”), from and against any and all Liabilities of losses, claims, damages or liabilities, joint or several, to which such seller or any such director, officer, employee, participating person or controlling person may become subject under the LLC Indemnitees relating toSecurities Act or otherwise, arising insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or resulting from any of the following items without duplication and including, without limitation, any such Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest: the failure of the Corporation or any other Person in the Corporation Group or any other Person to pay, perform or otherwise promptly discharge any Contributed Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the Corporation or any Person in the Corporation Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions; are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any registration statement (Registration Statement under which such securities were registered under the Securities Act, any Prospectus or preliminary prospectus included therein, or any amendment or supplement thereto) relating to such registration, including all documents incorporated therein by reference, or the (ii) any omission or alleged omission therefrom of to state a material fact required to be stated therein in any such Registration Statement, Prospectus, preliminary prospectus, amendment or supplement or necessary to make the statements therein not misleading or arising out of misleading; and the Corporation shall reimburse such seller and each such director, officer, employee, participating person and controlling person for any untrue statement or alleged untrue statement of a material fact contained in the IPO Registration Statement or Prospectus legal or any other document filed expenses reasonably incurred by the Corporation or any Person in the Corporation Group, including all documents incorporated therein by reference, with the Securities and Exchange Commission or otherwise used them in connection with the IPO investigating or the transactions contemplated thereby (collectivelydefending any such loss, the “IPO Documents”)claim, liability, action or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In connection with the foregoing, proceeding as such expenses are incurred; provided that the Corporation shall, and shall cause each of its Subsidiaries that is not be liable in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless each LLC Indemnitee: against any and all losses, liabilities, claims, damages, judgments and reasonable expenses whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, or of any other claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Corporation; and against any and all reasonable expense whatsoever, as incurred (including reasonable fees and disbursements of counsel) incurred in investigating, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (iii) above. provided, however, that the indemnity contained in this subparagraph (iii) does not apply to any LLC Indemnitee with respect to any loss, liability, claim, damage, judgment liability or expense to the extent arising arises out of any or is based upon an untrue statement or omission made in any such Registration Statement, Prospectus, preliminary prospectus, amendment or alleged untrue statement or omission (A) made supplement in reliance upon and in conformity with written information furnished to the Corporation by such LLC Indemnitee seller or participating person expressly for use in an IPO Document or (B) if such untrue statement or omission or alleged untrue statement or omission was corrected in an amended or supplemented registration statement or prospectus and the preparation thereof; provided further that the Corporation had furnished copies thereof shall not be liable and indemnification shall not apply to amounts paid in any settlement effected without the LLC Indemnitee from which the Person asserting such loss, liability, claim, damage, judgment or expense purchased the securities that are the subject thereof on a timely basis prior to the date of sale by such LLC Indemnitee to such Person. Notwithstanding anything to the contrary herein, in no event will any LLC Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction consent of the Excluded Liabilities. Indemnification by the LLC. Except as provided in Section 5.04, the LLC shall, and shall cause each of its Subsidiaries that is in the LLC Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless the Corporation, each Person in the Corporation Group, each shareholder of the Corporation that was a member of the LLC at the time of the Separation, and each of their respective directors, officers, managers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Corporation Indemnitees”), from and against any and all Liabilities of the Corporation Indemnitees relating to, arising out of or resulting from any of the following items (without duplication and including, without limitation, any Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest): the failure of the LLC or any other Person in the LLC Group or any other Person to pay, perform or otherwise promptly discharge any Excluded Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the LLC or any Person in the LLC Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions. Notwithstanding anything to the contrary herein, in no event will any Corporation Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Contributed Liabilities.
Appears in 1 contract
Indemnification by the Corporation. Except as provided in Section 5.04In connection with any Demand Registration and Piggy-Back Registration, the Corporation shall, and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend will indemnify and hold harmless the LLCHolder, each Person in the LLC Group its Affiliates and each of their respective members, managerspartners, directors, officers officers, employees and employees, agents and each Person who participates as an underwriter in the offering or sale of the heirsRegistrable Securities in connection with a Demand Registration or a Piggy-Back Registration, executorstheir respective directors, successors officers, employees and assigns agents and each person who controls such underwriter (within the meaning of any of the foregoing (collectively, the “LLC Indemnitees”Securities Laws), from and against any loss (excluding loss of profits), liability, claim, damage and all Liabilities expense whatsoever, including any amounts paid in settlement of the LLC Indemnitees relating toany investigation, order, litigation, proceeding or claim, joint or several, as incurred, arising out of or resulting from any of the following items without duplication and including, without limitation, any such Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest: the failure of the Corporation or any other Person in the Corporation Group or any other Person to pay, perform or otherwise promptly discharge any Contributed Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the Corporation or any Person in the Corporation Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions; based upon any untrue statement or alleged untrue statement of a material fact contained in any registration statement (Prospectus, or any amendment thereto) relating to such registration, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the IPO Registration Statement or Prospectus or any other document filed by the Corporation or any Person in the Corporation Group, including all documents incorporated therein by reference, with the Securities and Exchange Commission or otherwise used in connection with the IPO or the transactions contemplated thereby (collectively, the “IPO Documents”), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In connection with the foregoing, the Corporation shall, and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless each LLC Indemnitee: against any and all losses, liabilities, claims, damages, judgments and reasonable expenses whatsoever, misleading or as incurred, arising out of or based upon any failure to comply with applicable Securities Laws (other than any failure to comply with applicable Securities Laws by the extent of Holder or the aggregate amount paid in underwriter or underwriters); provided that the Corporation will not be liable under this Section 3.2 for any settlement of any litigationaction effected without its written consent, investigation which consent will not be unreasonably withheld or proceeding by any governmental agency or body, commenced or threatened, or of any other claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Corporationdelayed; and against any and all reasonable expense whatsoever, as incurred (including reasonable fees and disbursements of counsel) incurred in investigating, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (iii) above. provided, however, provided further that the indemnity contained provided for in this subparagraph (iii) does Section 3.2 will not apply to any LLC Indemnitee with respect to any loss, liability, claim, damage, judgment damage or expense to the extent arising out of any an untrue statement or omission or alleged untrue statement or omission (Ai) made in reliance upon and in conformity with written information furnished to the Corporation by the Holder in writing expressly stating that such LLC Indemnitee expressly information is being provided by the Holder for use in an IPO Document the Prospectus (or any amendment thereto) or (Bii) contained in any Prospectus if the Holder failed to send or deliver a copy of the Prospectus (or any amendment or supplement thereto) to the Person asserting such losses, liabilities, claims, damages or expenses on or prior to the delivery of written confirmation of any sale of securities covered thereby to such Person in any case where such Prospectus (or any amendment or supplement thereto) corrected such untrue statement or omission or alleged untrue statement or omission was corrected in an amended or supplemented registration statement or prospectus and omission. Any amounts advanced by the Corporation had furnished copies thereof to an Indemnified Party pursuant to this Section 3.2 as a result of such losses will be returned to the LLC Indemnitee from which the Person asserting such loss, liability, claim, damage, judgment or expense purchased the securities that are the subject thereof on a timely basis prior to the date of sale Corporation if it is finally determined by such LLC Indemnitee a court in a judgment not subject to appeal or final review that such Person. Notwithstanding anything Indemnified Party was not entitled to the contrary herein, in no event will any LLC Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Excluded Liabilities. Indemnification by the LLC. Except as provided in Section 5.04, the LLC shall, and shall cause each of its Subsidiaries that is in the LLC Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless the Corporation, each Person in the Corporation Group, each shareholder of the Corporation that was a member of the LLC at the time of the Separation, and each of their respective directors, officers, managers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Corporation Indemnitees”), from and against any and all Liabilities of the Corporation Indemnitees relating to, arising out of or resulting from any of the following items (without duplication and including, without limitation, any Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest): the failure of the LLC or any other Person in the LLC Group or any other Person to pay, perform or otherwise promptly discharge any Excluded Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the LLC or any Person in the LLC Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions. Notwithstanding anything to the contrary herein, in no event will any Corporation Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Contributed Liabilities.
Appears in 1 contract
Samples: Registration Rights Agreement (Postmedia Network Canada Corp.)
Indemnification by the Corporation. Except as provided in Section 5.04, the (a) The Corporation shall, will indemnify and shall cause save harmless each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly Underwriters and severally indemnify, defend and hold harmless the LLC, each Person in the LLC Group their respective Affiliates and each of their respective members, managers, directors, officers officers, employees and employees, agents (each referred to in this Section 7 as an “Indemnitee”) from and each of the heirs, executors, successors against all Claims asserted against and assigns of all Losses incurred by any of them directly or indirectly arising out of or resulting from:
(i) any information or statement contained in (A) any Offering Document, or (B) any other materials or information provided to investors by the foregoing Corporation, or by an Underwriter with the prior written approval of, the Corporation in connection with the Offering (collectively, the “LLC IndemniteesMarketing Materials”), from and against in each case being or being alleged to be a misrepresentation;
(ii) any and all Liabilities of the LLC Indemnitees relating to, arising out of or resulting from any of the following items without duplication and including, without limitation, any such Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest: the failure of the Corporation or any other Person in the Corporation Group or any other Person to pay, perform or otherwise promptly discharge any Contributed Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the Corporation or any Person in the Corporation Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions; any untrue statement or alleged untrue statement of a material fact contained in any registration statement (or any amendment thereto) relating to such registration, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material to state in any Offering Document or in any Marketing Materials any fact or information required to be stated therein or necessary to make the statements any statement therein not misleading in light of the circumstances in which it was made;
(iii) any order made or arising out inquiry, investigation or proceeding commenced or threatened by any Governmental Authority based upon any of the circumstances described in clause (i) or (ii) of this Section 7(1) which operates to prevent or restrict trading in or the distribution of any untrue statement of the Offered Securities;
(iv) the non-compliance or alleged untrue statement of a material fact contained in the IPO Registration Statement or Prospectus or any other document filed non-compliance by the Corporation with any requirement of Securities Laws or any Person in the Corporation Group, including all documents incorporated therein by reference, with the U.S. Securities and Exchange Commission or otherwise used Laws in connection with the IPO or Offering, including the transactions contemplated thereby (collectively, the “IPO Documents”), or the omission or alleged omission therefrom of a material fact necessary in order Corporation’s non-compliance with any statutory requirement to make the statements therein, any document available for inspection;
(v) any inaccuracy or misrepresentation in the light any representation or warranty of the circumstances under which they were madeCorporation in this Agreement or in any agreement, not misleading. In connection with the foregoing, certificate or other document delivered pursuant hereto; or
(vi) any breach by the Corporation shall, and shall cause each of its Subsidiaries that is in any covenant of the Corporation Group as of the Separation Datein this Agreement or in any agreement, to jointly and severally indemnify, defend and hold harmless each LLC Indemnitee: against any and all losses, liabilities, claims, damages, judgments and reasonable expenses whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, investigation certificate or proceeding by any governmental agency other document delivered pursuant hereto or body, commenced or threatened, or of any other claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omissionthereto. Except that, if such settlement is effected with the written consent of the Corporation; and against any and all reasonable expense whatsoever, as incurred (including reasonable fees and disbursements of counsel) incurred in investigating, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (iii) above. provided, however, a court of competent jurisdiction in a final judgment from which no appeal can be made or a Governmental Authority in a final ruling from which no appeal can be made determines that the Claim or Loss resulted from the gross negligence or wilful misconduct of the Indemnitee claiming indemnity, the Indemnitee shall promptly reimburse to the Corporation any funds advanced to the Indemnitee or fees and disbursements paid to the Indemnitee’s counsel pursuant to this indemnity contained in respect of such proceedings and the indemnity provided for in this subparagraph Section 7(1) cease to apply to such Indemnified Party in respect of such Claim or Loss; provided that an Underwriter’s failure to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation in an Offering Document will not constitute gross negligence or wilful misconduct for purposes of this Section 7(1)(a) or disentitle such Underwriter from claiming indemnification or contribution under this Section 7.
(iiib) does Notwithstanding any other provision of this Section 7(1), the provisions of this Section 7(1) will not apply to any LLC Indemnitee with respect to any loss, liability, claim, damage, judgment Claim or expense Loss to the extent arising out of any untrue information or statement or omission or alleged untrue statement omission in or omission (A) from any Offering Document or Marketing Materials made in reliance upon and in conformity with written information furnished to the Corporation by such LLC Indemnitee the Underwriters expressly for use in an IPO Document the Offering Documents or (B) if Marketing Materials, it being acknowledged and agreed that the only such untrue statement or omission or alleged untrue statement or omission was corrected in an amended or supplemented registration statement or prospectus and the Corporation had information furnished copies thereof to the LLC Indemnitee from which the Person asserting such loss, liability, claim, damage, judgment or expense purchased the securities that are the subject thereof on a timely basis prior to the date of sale by such LLC Indemnitee to such Person. Notwithstanding anything to the contrary herein, in no event will any LLC Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Excluded Liabilities. Indemnification by the LLC. Except as provided in Section 5.04, the LLC shall, and shall cause each of its Subsidiaries that is in the LLC Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless the Corporation, each Person in the Corporation Group, each shareholder of the Corporation that was a member of the LLC at the time of the Separation, and each of their respective directors, officers, managers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Corporation Indemnitees”), from and against any and all Liabilities of the Corporation Indemnitees relating to, arising out of or resulting from any Underwriter consists of the following items information in the Offering Documents or Marketing Materials furnished on behalf of each Underwriter: (without duplication i) the sixth paragraph under the heading “Plan of Distribution”; (ii) the third and including, without limitation, any Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest): the failure fourth sentences of the LLC or any other Person seventh paragraph under the heading “Plan of Distribution” in the LLC Group or any other Person to pay, perform or otherwise promptly discharge any Excluded Liabilities in accordance with their respective terms, whether prior to or after Prospectus; (iii) the Separation Date; any material breach by first and second sentences of the LLC or any Person eighth paragraph under the heading “Plan of Distribution” in the LLC Group Prospectus; and (iv) the words “Each of this Agreement or any Ancillary Agreement CIBC World Markets Inc., National Bank Financial Inc., RBC Dominion Securities Inc., Scotia Capital Inc. and TD Securities Inc. are affiliates of Canada chartered banks that does not contain its own indemnification provisions. Notwithstanding anything are members of a syndicate that has made revolving credit facilities to Just Energy L.P. and JEUSC under the contrary herein, in no event will any Corporation Indemnitee have the right to seek indemnification from any Person heading “Relationship Among Just Energy and Certain Underwriters” in the Corporation Group with respect Prospectus (the “Underwriters Information”).
(c) This indemnity will be in addition to any claim or demand against any Person in liability which the LLC Group for the satisfaction of the Contributed LiabilitiesCorporation may otherwise have.
Appears in 1 contract
Indemnification by the Corporation. Except as provided in Section 5.04, the 12.1 The Corporation shall, hereby covenants and shall cause agrees to indemnify and save harmless each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly Underwriters and severally indemnify, defend and hold harmless the LLC, each Person in the LLC Group their affiliates and each of their respective members, managers, directors, officers officers, employees, shareholders and employeesagents and their affiliates, and each person who controls any Underwriter within the meaning of the heirs, executors, successors and assigns of any of the foregoing Exchange Act (collectively, the “LLC Indemnitees”), "Indemnified Parties") from and against all liabilities, claims, losses (other than loss of profits), costs (including without limitation legal fees and disbursements on a solicitor and his own client basis), fines, penalties, damages and expenses to which any and all Liabilities Indemnified Party may be subject or which any Indemnified Party may suffer or incur, whether under the provisions of the LLC Indemnitees relating toany statute or otherwise, in any way caused by or arising out directly or indirectly by reason, or in consequence, of:
(a) any breach of or resulting from default under any of the following items without duplication and includingrepresentation, without limitation, any such Liabilities asserted by way of setoff, counterclaim warranty or defense covenant or enforcement of any Security Interest: the failure agreement of the Corporation or any other Person in the Corporation Group or any other Person to pay, perform or otherwise promptly discharge any Contributed Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the Corporation or any Person in the Corporation Group of this Agreement or any Ancillary Agreement other document to be delivered pursuant hereto;
(b) any information or statement (that does not contain its own indemnification provisions; any untrue statement or alleged untrue statement of a material fact constitute Underwriters' Information) contained in the Prospectuses, any registration statement (Supplementary Material or any amendment theretoother material or document filed under any Securities Laws or delivered by or on behalf of the Corporation thereunder or pursuant to this Agreement which contains or is alleged to contain a misrepresentation (as defined in the Securities Act (Alberta)) relating or to such registration, including all documents incorporated therein by reference, be or the be alleged to be untrue;
(c) any omission or alleged omission therefrom to state in the Prospectuses, any Supplementary Material, or any other material or document filed under any Securities Laws or delivered by or on behalf of a the Corporation thereunder or pursuant to this Agreement, any fact or information, other than Underwriters' Information, whether material fact or not, required to be stated therein or necessary to make the statements any statement therein not misleading in light of the circumstances under which it was made;
(d) any order made or arising out any inquiry, investigation or proceeding commenced or threatened by any court, governmental agency or body or regulatory authority, administrative tribunal or stock exchange or other competent authority based upon any actual or alleged untrue statement, omission or misrepresentation (not relating solely to Underwriters' Information) in the Prospectuses, any Supplementary Material or any other material or document filed or delivered by the Corporation under any Securities Laws or pursuant to this Agreement (except any material or document delivered or filed solely by the Underwriters) or based upon any failure by the Corporation to comply with Securities Laws (other than any failure or alleged failure to comply solely by the Underwriters) which prevents or restricts the trading in or the sale or Distribution of the Offered Shares or any of them or any other securities of the Corporation in any of the Qualifying Provinces or the United States of America;
(e) without limiting the generality of any of the foregoing, any untrue statement or alleged untrue statement of a material fact contained in the IPO Registration Statement as of the Effective Date or Prospectus in any amendment thereof, or in the Prospectuses or any other document filed Issuer Free Writing Prospectus, or in any amendment thereof or supplement thereto; or
(f) the non-compliance or alleged non-compliance by the Corporation with any requirements of the Securities Laws, or any Person in the Corporation Groupby-laws, rules and regulations of the Exchanges, including all documents incorporated therein by referencethe Corporation's non-compliance with any requirement to make any document available for inspection, with provided, however, an Indemnified Party shall cease to be entitled to indemnification in respect of a Claim if and to the Securities and Exchange Commission extent that a court of competent jurisdiction in a final non-appealable judgment determines that such Indemnified Party engaged in any dishonesty, fraud, fraudulent misrepresentation, gross negligence or otherwise used wilful default in connection with the IPO or the transactions contemplated thereby (collectively, the “IPO Documents”), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements thereinsuch Claim and, in the light event of such judicial determination, such Indemnified Party shall promptly reimburse the Corporation for the funds advanced to the Indemnified Party pursuant to this Section 12.1 prior to the determination. For greater certainty, the Corporation and the Underwriters agree that they do not intend that any failure by the Underwriters to conduct such reasonable investigation as necessary to provide the Underwriters with reasonable grounds for believing the Prospectuses contained no misrepresentation shall constitute "dishonesty", "fraud", "fraudulent misrepresentation", "gross negligence" or "wilful default" for purposes of this Section 12.1 or otherwise disentitle the Underwriters from indemnification hereunder. If any matter or thing contemplated by this Section 12 (any such matter or thing being hereinafter referred to as a "Claim") is asserted against any of the circumstances Indemnified Parties, or if any potential Claim contemplated by this Section 12 shall come to the knowledge of any Indemnified Party, the Indemnified Party concerned shall notify the Corporation as soon as possible of the nature of such Claim (provided that any failure to so notify shall not affect the Corporation's liability under which they were made, not misleading. In connection with this Section 12 except to the foregoing, extent that the failure materially prejudices the Corporation) and the Corporation shall, and shall cause each of subject as hereinafter provided, be entitled (but not required) at its Subsidiaries that is in expense to assume the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless each LLC Indemnitee: against any and all losses, liabilities, claims, damages, judgments and reasonable expenses whatsoever, as incurred, to the extent of the aggregate amount paid in settlement defence of any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, or of any other claim whatsoever based upon any suit brought to enforce such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the CorporationClaim; and against any and all reasonable expense whatsoever, as incurred (including reasonable fees and disbursements of counsel) incurred in investigating, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (iii) above. provided, however, that the defence shall be conducted through legal counsel acceptable to the Indemnified Party, acting reasonably, and that no admission of liability or settlement of any such Claim may be made by the Corporation or the Indemnified Party without, in each case, the prior written consent of all the affected parties thereto, such consent not to be unreasonably withheld.
12.2 In respect of any such Claim, an Indemnified Party shall have the right to retain separate or additional counsel to act on his or her or its behalf and participate in the defence thereof, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless:
(a) the Corporation assumes the defence of such suit on behalf of the Indemnified Party within 10 Business Days of the Corporation receiving notice of such Claim;
(b) the Corporation and the Indemnified Party shall have mutually agreed to the retention of the other counsel; or
(c) the named parties to any such Claim (including any added third or interpleaded party) include both the Indemnified Party, on the one hand, and the Corporation, on the other hand, and the Indemnified Party shall have been advised by its counsel that representation of both parties by the same counsel would be inappropriate due to the actual or potential differing interests between them (in which case the Corporation shall not have the right to assume that defence of such Claim, but shall be liable to pay the reasonable fees and expenses of counsel for the Indemnified Party); provided that the Corporation shall not, in connection with any one such action or separate but substantially similar related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate law firm (in addition to any local counsel) for all such Indemnified Parties.
12.3 If any legal proceedings shall be instituted against the Corporation or if any regulatory authority or stock exchange shall carry out an investigation of the Corporation and, in either case, any Indemnified Party is required to testify, or respond to procedures designed to discover information, in connection with or by reason of the services performed by the Underwriters hereunder, then the Indemnified Parties may employ their own legal counsel and the Corporation shall pay and reimburse the Indemnified Parties for the reasonable fees, charges and disbursements (on a full indemnity basis) of such legal counsel, the other expenses reasonably incurred by the Indemnified Parties in connection with such proceedings or investigation and a fee at the normal per diem rate for any director, officer or employee of the Underwriters involved in the preparation for or attendance at such proceedings or investigation.
12.4 With respect to any of their respective related Indemnified Parties who are not parties to this Agreement, the Underwriters shall obtain and hold the rights and benefits of this Section 12 and Section 13 in trust for and on behalf of such Indemnified Parties and the Underwriters agree to accept such trust and to hold the benefit of and enforce performance of such covenants on behalf of such persons.
12.5 The rights of indemnity contained in this subparagraph (iii) does not apply to any LLC Indemnitee with Section 12 in respect to any loss, liability, claim, damage, judgment or expense to the extent arising out of any untrue statement a Claim based on a misrepresentation or omission or alleged untrue statement misrepresentation or omission (A) made in reliance upon and in conformity with written information furnished one of the Prospectuses shall not apply if, prior to the Applicable Time, the Corporation has delivered Supplementary Material in full compliance with Section 3 and the person asserting such Claim was not provided with a copy of the Supplementary Material (if required under the applicable Securities Laws to have been so delivered to such person by the Underwriters) which corrects such LLC Indemnitee expressly for use in an IPO Document or (B) if such untrue statement misrepresentation or omission or alleged untrue statement misrepresentation or omission was corrected omission, if such claim would have no basis had such delivery been made.
12.6 The rights and remedies of the Underwriters set forth in an amended or supplemented registration statement or prospectus Sections 12, 13 and 17 are to the fullest extent possible in law cumulative and not alternative and the Corporation had furnished copies thereof election by any Underwriter to the LLC Indemnitee from which the Person asserting exercise any such loss, liability, claim, damage, judgment right or expense purchased the securities that are the subject thereof on a timely basis prior to the date of sale by such LLC Indemnitee to such Person. Notwithstanding anything to the contrary herein, in no event will any LLC Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Excluded Liabilities. Indemnification by the LLC. Except as provided in Section 5.04, the LLC shallremedy shall not be, and shall cause each of its Subsidiaries that is in the LLC Group as of the Separation Datenot be deemed to be, to jointly and severally indemnify, defend and hold harmless the Corporation, each Person in the Corporation Group, each shareholder of the Corporation that was a member of the LLC at the time of the Separation, and each of their respective directors, officers, managers and employees, and each of the heirs, executors, successors and assigns waiver of any of the foregoing (collectively, the “Corporation Indemnitees”), from other of such rights and against any and all Liabilities of the Corporation Indemnitees relating to, arising out of or resulting from any of the following items (without duplication and including, without limitation, any Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest): the failure of the LLC or any other Person in the LLC Group or any other Person to pay, perform or otherwise promptly discharge any Excluded Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the LLC or any Person in the LLC Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions. Notwithstanding anything to the contrary herein, in no event will any Corporation Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Contributed Liabilitiesremedies.
Appears in 1 contract
Indemnification by the Corporation. Except as provided in Section 5.04, the The Corporation shall, and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, agrees to jointly and severally indemnify, defend indemnify and hold harmless the LLCeach Holder and its officers, each Person in the LLC Group directors and trustees, legal counsel and accountants for any Holder, any underwriter for any Holder and each of their respective membersPerson, managersif any, directors, officers and employees, and each of the heirs, executors, successors and assigns of who controls any of the foregoing Persons within the meaning of Section 15 of the Securities Act as follows:
(collectively, the “LLC Indemnitees”), from and a) against any and all Liabilities of loss, liability, claim, damage and expense whatsoever, as incurred, to which such Holder, officer, director or controlling Person may become subject under the LLC Indemnitees relating toSecurities Act, arising under any other federal or state law or otherwise (i) that arise out of or resulting from any of the following items without duplication and including, without limitation, any such Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest: the failure of the Corporation or any other Person in the Corporation Group or any other Person to pay, perform or otherwise promptly discharge any Contributed Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the Corporation or any Person in the Corporation Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions; are based upon any untrue statement or alleged untrue statement of a material fact contained in any registration statement (Registration Statement or any amendment thereto) relating to such registration, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or arising (ii) that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the IPO Registration Statement or any Prospectus or any other document filed by the Corporation amendment or any Person in the Corporation Group, including all documents incorporated therein by reference, with the Securities and Exchange Commission or otherwise used in connection with the IPO or the transactions contemplated thereby (collectively, the “IPO Documents”)supplement thereto, or the omission or alleged omission therefrom of to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In connection with misleading or (iii) that arise out of or are based upon any violation or alleged violation of the foregoingSecurities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law by the Corporation shall, and shall cause each or any of its Subsidiaries that is in officers or directors or any Person who controls the Corporation Group as within the meaning of Section 15 of the Separation Date, to jointly and severally indemnify, defend and hold harmless each LLC Indemnitee: Securities Act;
(b) against any and all lossesloss, liabilitiesliability, claimsclaim, damages, judgments damage and reasonable expenses expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or incurred in connection with any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any other claim whatsoever based upon any such untrue statement of the matters identified in clauses (i), (ii) or omission(iii) or Section 4.01(a), or any such alleged untrue statement or omission, if unless such settlement is effected with without the written consent of the CorporationCorporation (which consent has not been unreasonably withheld); and and
(c) subject to the limitations set forth in Section 4.03, against any and all reasonable expense whatsoever, as incurred (including reasonable fees and disbursements of counsel) ), reasonably incurred in investigating, preparing or defending against any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement of the matters identified in clauses (i), (ii) or omission, (iii) or any such alleged untrue statement or omissionSection 4.01(a), to the extent that any such expense is not paid under subparagraph Sections 4.01(a) or 4.01(b);
(iiid) above. any violation by the Corporation of any rule or regulation promulgated under the Securities Act applicable to the Corporation in connection with any registration, qualification, or compliance of the Registrable Securities or any other capital stock of the Corporation; provided, however, that the indemnity contained in provided pursuant to this subparagraph (iii) does Section 4.01 shall not apply (i) to any LLC Indemnitee with respect to amounts paid in settlement of any such loss, liability, claim, damage, judgment damage or expense if such settlement is effected without the consent of the Corporation (which consent shall not be unreasonably delayed or withheld), or (A) to any Holder with respect to any of the extent arising foregoing in this Section 4.01 that arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged untrue statement or omission (A) made in reliance upon and in conformity with written information furnished to the Corporation by such LLC Indemnitee Holder expressly for use in an IPO Document any Registration Statement or (B) if such untrue statement any amendment thereto or omission the Prospectus or alleged untrue statement any amendment or omission was corrected in an amended supplement thereto, or supplemented registration statement the Holder's failure to deliver a copy of any Registration Statement or prospectus and Prospectus or any amendments or supplements thereto after the Corporation had has furnished the Holder with the requested number of copies thereof to the LLC Indemnitee from which the Person asserting such loss, liability, claim, damage, judgment or expense purchased the securities that are the subject thereof on a timely basis prior to the date of sale by such LLC Indemnitee to such Person. Notwithstanding anything to the contrary herein, in no event will any LLC Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Excluded Liabilities. Indemnification by the LLC. Except as provided in Section 5.04, the LLC shall, and shall cause each of its Subsidiaries that is in the LLC Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless the Corporation, each Person in the Corporation Group, each shareholder of the Corporation that was a member of the LLC at the time of the Separation, and each of their respective directors, officers, managers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Corporation Indemnitees”), from and against any and all Liabilities of the Corporation Indemnitees relating to, arising out of or resulting from any of the following items (without duplication and including, without limitation, any Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest): the failure of the LLC or any other Person in the LLC Group or any other Person to pay, perform or otherwise promptly discharge any Excluded Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the LLC or any Person in the LLC Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions. Notwithstanding anything to the contrary herein, in no event will any Corporation Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Contributed Liabilitiessame.
Appears in 1 contract
Samples: Registration Rights Agreement (Provectus Pharmaceuticals Inc)
Indemnification by the Corporation. Except as provided in To xxx xxxxest extent permitted by Section 5.04145 of the Delaware General Corporation Law (or any successor provision) and AVR's charter and by-laws, the Corporation shall, and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless the LLC, each Person in the LLC Group and each of their respective members, managers, directors, officers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing promptly indemnify Bregman for all amounts (collectively, the “LLC Indemnitees”), from and against any and all Liabilities of the LLC Indemnitees relating to, arising out of or resulting from any of the following items without duplication and including, without limitation, any such Liabilities asserted judgments, fixxx, xxttlement payments, losses, damages, costs and expenses (including reasonable attorneys' fees)) incurred or paid by way of setoff, counterclaim or defense or enforcement of any Security Interest: the failure of the Corporation or any other Person in the Corporation Group or any other Person to pay, perform or otherwise promptly discharge any Contributed Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the Corporation or any Person in the Corporation Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions; any untrue statement or alleged untrue statement of a material fact contained in any registration statement (or any amendment thereto) relating to such registration, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the IPO Registration Statement or Prospectus or any other document filed by the Corporation or any Person in the Corporation Group, including all documents incorporated therein by reference, with the Securities and Exchange Commission or otherwise used Bregman in connection with the IPO any action, proceeding, suit or the transactions contemplated thereby (collectively, the “IPO Documents”), investigatxxx xxxsing out of or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In connection with the foregoing, the Corporation shall, and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless each LLC Indemnitee: against any and all losses, liabilities, claims, damages, judgments and reasonable expenses whatsoever, as incurred, relating to the extent performance by Bregman of services for the aggregate amount paid in settlement of any litigationCorporation, investigation or proceeding by any governmental agency or bodyincluding as a director, commenced or threatened, or of any other claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent offxxxx xx employee of the Corporation; . Promptly after receipt by Bregman of notice of the assertion of a claim against him for actions xxxxxxd to such services, Bregman will give AVR written notice of the assertion of such claim. Xx xxx claim is brought against Bregman by means of a proceeding and against any and all reasonable expense whatsoeverBregman gives written notice to XXX xx the commencement of such procexxxxx, as incurred (including reasonable fees and disbursements of counsel) incurred AVR will be entitled to participate in investigating, preparing or defending against any litigation, investigation or such proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omissionand, to the extent that any it wishes (unless (i) AVR is also a party to such expense is not paid under subparagraph proceeding and Bregman determines in good faith that joint representation would be ixxxxxxxriate or (iiiii) above. provided, however, that the indemnity contained in this subparagraph (iii) does not apply AVR fails to any LLC Indemnitee provide reasonable assurance to Bregman of its financial capacity to defend such proceeding and provixx xxxxmnification with respect to such proceeding), to assume the defense of such proceeding with counsel satisfactory to Bregman. After written notice from AVR to Bregman of its election to xxxxxx the defense of such proceeding, AVR xxxx xot, as long as it diligently conducts such defense, be liable to Bregman under this indemnification for any loss, liability, claim, damage, judgment fees of other counsel or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission (A) made in reliance upon and in conformity with written information furnished to the Corporation by such LLC Indemnitee expressly for use in an IPO Document or (B) if such untrue statement or omission or alleged untrue statement or omission was corrected in an amended or supplemented registration statement or prospectus and the Corporation had furnished copies thereof to the LLC Indemnitee from which the Person asserting such loss, liability, claim, damage, judgment or expense purchased the securities that are the subject thereof on a timely basis prior to the date of sale by such LLC Indemnitee to such Person. Notwithstanding anything to the contrary herein, in no event will any LLC Indemnitee have the right to seek indemnification from any Person in the Corporation Group axx xxxxr expenses with respect to the defense of such proceeding, in each case subsequently incurred by Bregman in connection with the defense of such proceeding, other than xxxxxxable costs of investigation. If AVR assumes the defense of a proceeding, (i) it will be conclusively established for purposes of this indemnification that the claims made in that proceeding are within the scope of and subject to indemnification; and (ii) no compromise or settlement of such claims may be effected by AVR without Bregman's consent, which consent Bregman shall not unreasonably withhxxx. Xx xritten notice is given tx XXX xf the commencement of any claim or demand against any Person in proceeding and AVR does not, within ten days after Bregman's written notice is given, give written notice to Bregman of xxx xxxxxion to assume the LLC Group for the satisfaction defense of the Excluded Liabilities. Indemnification by the LLC. Except as provided in Section 5.04such proceeding, the LLC shall, and shall cause each of its Subsidiaries that is Xxxxxxation will be bound by any determination made in the LLC Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless the Corporation, each Person in the Corporation Group, each shareholder of the Corporation that was a member of the LLC at the time of the Separation, and each of their respective directors, officers, managers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Corporation Indemnitees”), from and against any and all Liabilities of the Corporation Indemnitees relating to, arising out of or resulting from any of the following items (without duplication and including, without limitation, any Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest): the failure of the LLC such proceeding or any other Person in the LLC Group compromise or any other Person to pay, perform or otherwise promptly discharge any Excluded Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach settlement effected by the LLC or any Person in the LLC Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions. Notwithstanding anything to the contrary herein, in no event will any Corporation Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Contributed LiabilitiesBregman.
Appears in 1 contract
Samples: Employment Agreement (Advanced Viral Research Corp)
Indemnification by the Corporation. Except as provided in Section 5.04The Corporation (for the purposes of this Article X, the Corporation shall"Indemnifying Party") shall indemnify the Investor, its Affiliates, and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless the LLC, each Person in the LLC Group and each of their respective members, managers, directors, officers and officers, employees, agents and each of the heirs, executors, successors and assigns of any of the foregoing counsel (collectively, the “LLC Indemnitees”)"Indemnified Parties") from, from and against hold each of them harmless against, any and all actions, suits, losses, liabilities, claims and damages, and expenses in connection therewith, including reasonable counsel's fees and disbursements, whether foreseeable or unforeseeable ("Indemnified Liabilities") to which any of them may become subject arising in connection with this Agreement, the transactions contemplated hereby, and any action, omission to act, occurrence or condition in connection herewith, regardless of (and including Indemnified Liabilities of the LLC Indemnitees relating toarising from) any Indemnitee's sole, arising ordinary, contributory or other negligence, other than gross negligence, including Indemnified Liabilities that arise out of or resulting from relate to any:
(A) actual or proposed use by the Corporation and any Subsidiaries of the following items proceeds;
(B) exercise by the Investor or any Affiliate of their respective rights under either this Agreement or the other transactions contemplated by this Agreement, or the terms of the Preferred Stock;
(C) Proceedings brought against the Investor or any Affiliate in their capacity as shareholders in the Corporation;
(D) breach by the Corporation of this Agreement, including without duplication limitation any inaccuracy in any representation or warranty of the Corporation under this Agreement, the Schedules hereto, or any agreement, certificate of other document delivered or to be delivered by the Corporation pursuant hereto in any respect, whether or not the Indemnified Party relied thereon or had Knowledge thereof and without regard to any qualifications contained in such representations and warranties limiting such representations and warranties (a) to matters within the Knowledge of the Corporation or any Subsidiary, or (b) as to materiality;
(E) breach or nonfulfillment of any covenant, agreement or other obligation of the Corporation under this Agreement or any agreement or document delivered pursuant hereto; and
(F) violation by the Corporation or any Subsidiaries of any legal requirement including, without limitation, any such Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest: the failure of the Corporation or any other Person in the Corporation Group or any other Person to pay, perform or otherwise promptly discharge any Contributed Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the Corporation or any Person in the Corporation Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions; any untrue statement or alleged untrue statement of a material fact contained in any registration statement (or any amendment thereto) relating to such registration, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the IPO Registration Statement or Prospectus or any other document filed by the Corporation or any Person in the Corporation Group, including all documents incorporated therein by reference, with the Securities and Exchange Commission or otherwise used in connection with the IPO or the transactions contemplated thereby (collectively, the “IPO Documents”), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In connection with the foregoing, the Corporation shall, and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless each LLC Indemnitee: against any and all losses, liabilities, claims, damages, judgments and reasonable expenses whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, or of any other claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Corporation; and against any and all reasonable expense whatsoever, as incurred (including reasonable fees and disbursements of counsel) incurred in investigating, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (iii) above. provided, however, that the indemnity contained in this subparagraph (iii) does not apply to any LLC Indemnitee with respect to any loss, liability, claim, damage, judgment or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission (A) made in reliance upon and in conformity with written information furnished to the Corporation by such LLC Indemnitee expressly for use in an IPO Document or (B) if such untrue statement or omission or alleged untrue statement or omission was corrected in an amended or supplemented registration statement or prospectus and the Corporation had furnished copies thereof to the LLC Indemnitee from which the Person asserting such loss, liability, claim, damage, judgment or expense purchased the securities that are the subject thereof on a timely basis prior to the date of sale by such LLC Indemnitee to such Person. Notwithstanding anything to the contrary herein, in no event will any LLC Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Excluded Liabilities. Indemnification by the LLC. Except as provided in Section 5.04, the LLC shall, and shall cause each of its Subsidiaries that is in the LLC Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless the Corporation, each Person in the Corporation Group, each shareholder of the Corporation that was a member of the LLC at the time of the Separation, and each of their respective directors, officers, managers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Corporation Indemnitees”), from and against any and all Liabilities of the Corporation Indemnitees relating to, arising out of or resulting from any of the following items (without duplication and including, without limitation, any Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest): the failure of the LLC or any other Person in the LLC Group or any other Person to pay, perform or otherwise promptly discharge any Excluded Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the LLC or any Person in the LLC Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions. Notwithstanding anything to the contrary herein, in no event will any Corporation Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Contributed Liabilitiesapplicable Environmental Laws.
Appears in 1 contract
Samples: Stock Purchase Agreement (Enron Capital & Trade Resources Corp)
Indemnification by the Corporation. Except as provided in Section 5.04, the (a) The Corporation shall, shall fully indemnify and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold save harmless the LLC, each Person in the LLC Group and each of their respective members, managers, directors, officers and employees, and each of the heirsUnderwriters and their respective affiliates, executorsand the respective directors, successors officers, employees and assigns of any of the foregoing agents thereof (collectively, the “LLC IndemniteesIndemnified Parties” and individually an “Indemnified Party”), ) from and against any all losses (other than losses of profit), claims, damages, liabilities, costs and all Liabilities expenses, (including the reasonable fees and expenses of the LLC Indemnitees relating toIndemnified Parties’ counsel that may be incurred in advising with respect to or defending such claim), arising in any capacity under any statute or common law or otherwise insofar as such expenses, losses, claims, damages, liabilities or actions arise out of or resulting from any are based, directly or indirectly, upon the performance of professional services rendered to the following items without duplication and Corporation by the Indemnified Parties or otherwise in connection with the matters referred to in this Agreement, including, without limitation, in any such Liabilities asserted way caused by, or arising directly or indirectly from, or in consequence of caused by way of setoffor arising directly or indirectly from or in consequence of:
(i) the breach of, counterclaim or defense default under, any term, condition, covenant or enforcement of any Security Interest: the failure agreement of the Corporation made or contained herein or in any other Person in document of the Corporation Group delivered pursuant hereto or any other Person to pay, perform or otherwise promptly discharge any Contributed Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach made by the Corporation in connection with the sale of the Offered Securities or any Person in representation or warranty of the Corporation Group of this Agreement made or any Ancillary Agreement that does not contain its own indemnification provisions; any untrue statement contained herein or alleged untrue statement of a material fact contained in any registration statement other document of the Corporation delivered pursuant hereto or in connection with the sale of the Offered Securities being or being alleged to be untrue, false or misleading;
(ii) any negligence or any amendment thereto) wilful misconduct by the Corporation relating to such registration, including all documents incorporated therein or connected with the sale by reference, or the Corporation of the Offered Securities;
(iii) any omission or alleged omission therefrom to state in any of a material the Preliminary Prospectus, Final Prospectus or Supplementary Material (including, for greater certainty, the Documents Incorporated by Reference and any Subsequent Disclosure Documents) or in any certificate of the Corporation delivered under this Agreement or pursuant to this Agreement any fact (except facts relating solely to the Underwriters), required to be stated therein in such document or necessary to make the statements therein any statement in such document not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the IPO Registration Statement or Prospectus or any other document filed by the Corporation or any Person in the Corporation Group, including all documents incorporated therein by reference, with the Securities and Exchange Commission or otherwise used in connection with the IPO or the transactions contemplated thereby (collectively, the “IPO Documents”), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were it was made;
(iv) any order made or enquiry, investigation or proceedings commenced or threatened by any securities regulator or other competent authority, not misleading. In connection based upon the activities or alleged activities of the Underwriters, based upon any untrue, false or misleading statement or omission or alleged untrue, false or misleading statement or omission or any misrepresentation or alleged misrepresentation made by the Corporation;
(v) the non-compliance or alleged non-compliance by the Corporation with any of the Securities Laws of the Qualifying Provinces or the U.S. Securities Act relating to or connected with the foregoing, sale by the Corporation shallof the Offered Securities, and shall cause each of its Subsidiaries that is including the Corporation’s non-compliance with any statutory requirement to make any document available for inspection, provided that, in the Corporation Group as event and to the extent that a court of competent jurisdiction in a final judgment from which no appeal can be made or a regulatory authority in a final ruling from which no appeal can be made shall determine that the Separation Date, to jointly and severally indemnify, defend and hold harmless each LLC Indemnitee: against any and all losses, liabilities, claims, damagesactions, judgments and reasonable suits, proceedings, losses, costs, damages or expenses whatsoeverresulted from the negligence, fraud or wilful misconduct of an Indemnified Party claiming indemnity, this indemnity shall not apply.
(b) If any claim contemplated by this section 19 shall be asserted against any of the Indemnified Parties, or if any potential claim contemplated by this section 19 shall come to the knowledge of any of the Indemnified Parties, the Indemnified Party concerned shall notify in writing the Corporation as incurred, soon as possible of the nature of such claim (provided that any failure to so notify in respect of any potential claim shall affect the liability of the Corporation under this section 19 only to the extent that the Corporation is prejudiced by such failure). The Corporation shall, subject as hereinafter provided, be entitled (but not required) to assume the defence on behalf of the aggregate amount paid in settlement Indemnified Party of any litigationsuit brought to enforce such claim; provided that the defence shall be through legal counsel selected by the Corporation and acceptable to the Indemnified Party, investigation acting reasonably and no admission of liability shall be made by the Corporation or proceeding by any governmental agency or bodythe Indemnified Party without, commenced or threatenedin each case, or of any other claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the prior written consent of all the Indemnified Parties affected and the Corporation, in each case such consent not to be unreasonably withheld. An Indemnified Party shall have the right to employ separate counsel in any such suit and participate in the defence thereof but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless:
(i) the Corporation fails to assume the defence of such suit on behalf of the Indemnified Party within twenty days of receiving notice of such suit;
(ii) the employment of such counsel has been authorized by the Corporation; and against or
(iii) the named parties to any and all reasonable expense whatsoever, as incurred such suit (including any added or third parties) include the Indemnified Party and the Corporation and the Indemnified Party and the Corporation shall have been advised in writing by counsel that representation of the Indemnified Party by counsel for the Corporation is inappropriate as a result of the potential or actual conflicting interests of those represented; (in each of cases (i), (ii) or (iii), the Corporation shall not have the right to assume the defence of such suit on behalf of the Indemnified Party, but the Corporation shall only be liable to pay the reasonable fees and disbursements of counselone firm of separate counsel for all Indemnified Parties. In no event shall the Corporation be required to pay the fees and disbursements of more than one set of counsel for all Indemnity Parties in respect of any particular claim or set of claims).
(c) incurred in investigatingThe Corporation hereby acknowledges and agrees that, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (iii) above. provided, however, that the indemnity contained in this subparagraph (iii) does not apply to any LLC Indemnitee with respect to any loss, liability, claim, damage, judgment or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission (A) made in reliance upon sections 19 and in conformity with written information furnished to the Corporation by such LLC Indemnitee expressly for use in an IPO Document or (B) if such untrue statement or omission or alleged untrue statement or omission was corrected in an amended or supplemented registration statement or prospectus and the Corporation had furnished copies thereof to the LLC Indemnitee from which the Person asserting such loss, liability, claim, damage, judgment or expense purchased the securities that are the subject thereof on a timely basis prior to the date of sale by such LLC Indemnitee to such Person. Notwithstanding anything to the contrary herein, in no event will any LLC Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Excluded Liabilities. Indemnification by the LLC. Except as provided in Section 5.0420 hereof, the LLC shallUnderwriters are contracting on their own behalf and as agents for their affiliates, directors, officers, employees and shall cause each of its Subsidiaries that is in the LLC Group as of the Separation Date, to jointly agents and severally indemnify, defend and hold harmless the Corporation, each Person in the Corporation Group, each shareholder of the Corporation that was a member of the LLC at the time of the Separation, and each of their respective directors, officers, managers employees and employees, and each of the heirs, executors, successors and assigns of any of the foregoing agents (collectively, the “Corporation IndemniteesBeneficiaries”). In this regard, from and against any and all Liabilities each of the Underwriters shall act as trustee for the Beneficiaries of the covenants of the Corporation Indemnitees relating to, arising out of or resulting from any under sections 19 and 20 hereof with respect to the Beneficiaries and accepts these trusts and shall hold and enforce such covenants on behalf of the following items (without duplication and including, without limitation, any Liabilities asserted by way Beneficiaries. The rights of setoff, counterclaim or defense or enforcement of any Security Interest): indemnity contained in this section 19 shall not enure to the failure benefit of the LLC Underwriters or any other Person in Indemnified Party if the LLC Group person asserting any claim contemplated by this section 19 was not provided with a copy of the Prospectus or Supplementary Material which corrects any other Person untrue statement or information, misrepresentation or omission which is the basis of such claim and which is required under the Securities Laws to pay, perform or otherwise promptly discharge any Excluded Liabilities in accordance with their respective terms, whether prior be delivered to or after the Separation Date; any material breach such person by the LLC Underwriters or any Person in the LLC Group members of this Agreement their banking or any Ancillary Agreement that does not contain its own indemnification provisions. Notwithstanding anything to the contrary herein, in no event will any Corporation Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Contributed Liabilitiesselling group (if any).
Appears in 1 contract
Indemnification by the Corporation. Except as provided in Section 5.04, the The Corporation shall, and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Dateit hereby does, indemnify and hold harmless, to jointly and severally indemnifythe fullest extent permitted by law, defend and hold harmless the LLCStockholder, each Person in the LLC Group and each of their respective its officers, directors, partners, members, managers, directors, officers stockholders and employees, employees and each Person who controls (within the meaning of the heirs, executors, successors and assigns of any of Securities Act or the foregoing (collectively, the “LLC Indemnitees”), Exchange Act) such Persons from and against any and all Liabilities losses, claims, damages, liabilities and expenses, joint or several (including reasonable costs of the LLC Indemnitees relating toinvestigation and reasonable legal expenses or other reasonable expenses actually incurred thereby in connection with investigating or defending any claim or proceeding resulting therefrom) (each, a “Loss” and collectively “Losses”) arising out of or resulting from any of the following items without duplication and including, without limitation, any such Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest: the failure of the Corporation or any other Person in the Corporation Group or any other Person to pay, perform or otherwise promptly discharge any Contributed Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the Corporation or any Person in the Corporation Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions; based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any registration statement Registration Statement under which such Registrable Securities are registered or sold under the Securities Act (including any final, preliminary or summary Prospectus contained therein or any amendment thereto) relating to such registration, including all thereof or supplement thereto or any documents incorporated therein by referencereference therein) or any other disclosure document produced by or on behalf of the Corporation or any of its subsidiaries including any report and other document filed under the Exchange Act, or the (ii) any omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement (in the case of a material fact contained in the IPO Registration Statement or Prospectus or any other document filed by the Corporation or any Person in the Corporation Group, including all documents incorporated therein by reference, with the Securities and Exchange Commission or otherwise used in connection with the IPO or the transactions contemplated thereby (collectively, the “IPO Documents”), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements thereinpreliminary Prospectus, in the light of the circumstances under which they were made, ) not misleading. In connection with the foregoing, the Corporation shall, and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless each LLC Indemnitee: against any and all losses, liabilities, claims, damages, judgments and reasonable expenses whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, or of any other claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Corporation; and against any and all reasonable expense whatsoever, as incurred (including reasonable fees and disbursements of counsel) incurred in investigating, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (iii) above. provided, however, that the indemnity contained Stockholder shall not be entitled to indemnification pursuant to this Section 8(a) in this subparagraph (iii) does not apply to any LLC Indemnitee with respect to any loss, liability, claim, damage, judgment or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission (A) made contained in reliance upon and in conformity with written any information furnished in writing by the Stockholder to the Corporation by such LLC Indemnitee expressly specifically for use inclusion in an IPO Document or (B) if such untrue statement or omission or alleged untrue statement or omission was a Registration Statement that has not been corrected in an amended or supplemented registration statement or prospectus and the Corporation had furnished copies thereof a subsequent writing prior to the LLC Indemnitee from which sale of the Registrable Securities to the Person asserting the claim or (iii) any violation or alleged violation by the Corporation (or any of its agents or Affiliates) of the Securities Act, the Exchange Act, any state securities law, or any rule or regulation promulgated under the Securities Act, the Exchange Act, or any state securities law. This indemnity shall be in addition to any liability the Corporation may otherwise have. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such lossHolder or any indemnified party and shall survive the Transfer of such securities by the Stockholder. The Corporation shall also indemnify underwriters, liabilityselling brokers, claimdealer managers and similar securities industry professionals participating in the distribution, damage, judgment or expense purchased their officers and directors and each Person who controls such Persons (within the securities that are meaning of the subject thereof on a timely basis prior Securities Act and the Exchange Act) to the date of sale by such LLC Indemnitee to such Person. Notwithstanding anything to the contrary herein, in no event will any LLC Indemnitee have the right to seek indemnification from any Person in the Corporation Group same extent as provided above with respect to any claim or demand against any Person in the LLC Group for the satisfaction indemnification of the Excluded Liabilities. Indemnification by the LLC. Except as provided in Section 5.04, the LLC shall, and shall cause each of its Subsidiaries that is in the LLC Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless the Corporation, each Person in the Corporation Group, each shareholder of the Corporation that was a member of the LLC at the time of the Separation, and each of their respective directors, officers, managers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Corporation Indemnitees”), from and against any and all Liabilities of the Corporation Indemnitees relating to, arising out of or resulting from any of the following items (without duplication and including, without limitation, any Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest): the failure of the LLC or any other Person in the LLC Group or any other Person to pay, perform or otherwise promptly discharge any Excluded Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the LLC or any Person in the LLC Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions. Notwithstanding anything to the contrary herein, in no event will any Corporation Indemnitee have the right to seek indemnification from any Person in the Corporation Group with respect to any claim or demand against any Person in the LLC Group for the satisfaction of the Contributed Liabilitiesindemnified parties.
Appears in 1 contract
Samples: Registration Rights Agreement (Evolent Health, Inc.)
Indemnification by the Corporation. Except as provided in Section 5.04, the
(a) The Corporation shall, agrees to indemnify and shall cause each of its Subsidiaries that is in the Corporation Group as of the Separation Date, to jointly and severally indemnify, defend and hold save harmless the LLCAgent and its affiliates (for the purposes of this Section 12, each Person in references to the LLC Group Agent shall be deemed to include the Agent’s affiliates) and each of any Selling Firms and their respective members, managers, directors, officers and officers, employees, partners, agents, advisors and each of the heirs, executors, successors and assigns of any of the foregoing shareholders (collectively, the “LLC Indemnitees”)"Indemnified Parties" and individually, an "Indemnified Party") from and against any and all Liabilities losses (other than loss of profit), expenses, claims, actions, suits, proceedings, damages, liabilities or expenses of whatsoever nature or kind, including the LLC Indemnitees relating toaggregate amount paid in reasonable settlement of any actions, arising out suits, proceedings, investigations or claims and the reasonable fees, disbursements and taxes of their counsel (collectively, "Losses") in connection with any action, suit, proceeding, investigation or resulting from any of the following items without duplication and claim (including, without limitation, security holder or derivative actions, arbitration proceedings or otherwise) that may be made or threatened against any such Liabilities asserted by way of setoffIndemnified Party or in enforcing this indemnity (collectively, counterclaim or defense or enforcement of any Security Interest: the failure of the Corporation or any other Person in the Corporation Group or any other Person "Claims") to pay, perform which an Indemnified Party may become subject or otherwise promptly discharge involved in any Contributed Liabilities in accordance with their respective termscapacity insofar as the Claims relate to, whether prior to are caused by, result from, arise out of or after the Separation Date; any material breach by the Corporation are based upon, directly or any Person in the Corporation Group of this Agreement or any Ancillary Agreement that does not contain its own indemnification provisions; indirectly:
(i) any untrue statement or alleged untrue statement of a material fact contained in any registration statement (or any amendment thereto) relating to such registration, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the IPO Registration Statement information (whether written or Prospectus oral) supplied to any prospective Subscriber by or any other document filed by on behalf of the Corporation or any Person in the Corporation Group, including all documents incorporated therein by reference, with the Securities and Exchange Commission or otherwise used in connection with the IPO or the transactions contemplated thereby (collectively, the “IPO Documents”), or the omission or alleged omission therefrom of to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading. In , or
(ii) the services provided by the Agent hereunder or under the engagement letter entered into between the Agent and the Corporation dated August 7, 2019, and to reimburse each Indemnified Party forthwith, upon demand, for any legal or other expenses reasonably incurred by such Indemnified Party in connection with any Claim, provided, however that this indemnity shall not apply in respect of the foregoingAgent or the Indemnified Parties to the extent that a court of competent jurisdiction in a final judgment that has become non-appealable shall determine that: (A) the Agent or Indemnified Party has been negligent or have committed any fraudulent act or wilful misconduct in the course of such performance; and (B) the expenses, losses, claims, damages or liabilities, as to which indemnification is claimed, were directly or indirectly caused by the negligence, fraudulent act or wilful misconduct referred to in (A). If for any reason (other than the occurrence of any of the events itemized in (A) and (B) above), the foregoing indemnification is unavailable to the Agent or insufficient to hold it harmless, then the Corporation shall contribute to the amount paid or payable by the Agent as a result of such expense, loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Corporation on the one hand and the Agent on the other hand but also the relative fault of the Corporation and the Agent, as well as any relevant equitable considerations; provided that the Corporation shall, and in any event, contribute to the amount paid or payable by the Agent as a result of such expense, loss, claim, damage or liability, any excess of such amount over the amount of the fees received by the Agent hereunder pursuant to the Agreement to which this indemnity is attached. The Corporation agrees that in case any legal proceeding shall cause each of its Subsidiaries that is in be brought against the Corporation Group as of and/or the Separation Date, to jointly and severally indemnify, defend and hold harmless each LLC Indemnitee: against any and all losses, liabilities, claims, damages, judgments and reasonable expenses whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, investigation or proceeding Agent by any governmental agency commission or bodyregulatory authority or any stock exchange or other entity having regulatory authority, commenced either domestic or threatened, or of any other claim whatsoever based upon any such untrue statement or omissionforeign, or any such alleged untrue statement or omission, if such settlement is effected with entity shall investigate the written consent Corporation and/or the Agent and any Indemnified Parties of the Corporation; Agent shall be required to testify in connection therewith or shall be required to respond to procedures designed to discover information regarding, in connection with, or by reason of the performance of professional services rendered to the Corporation by the Agent, the Agent shall have the right to employ its own counsel in connection therewith, and against any and all reasonable expense whatsoever, as incurred (including the reasonable fees and disbursements expenses of counselsuch counsel as well as the reasonable costs (including an amount to reimburse the Agent for time spent by its Indemnified Parties in connection therewith) and out-of-pocket expenses incurred by its Indemnified Parties in investigatingconnection therewith shall be paid by the Corporation as they occur.
(b) Promptly after receipt of notice of the commencement of any legal proceeding against an Indemnified Party or after receipt of notice of the commencement of any investigation, preparing which is based, directly or defending against any litigationindirectly, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omissionmatter in respect of which indemnification may be sought from the Corporation, or the Agent will notify the Corporation in writing of the commencement thereof and, throughout the course thereof, will provide copies of all relevant documentation to the Corporation, will keep the Corporation advised of the progress thereof and will discuss with the Corporation all significant actions proposed. The omission so to notify the Corporation shall not relieve the Corporation of any such alleged untrue statement or omission, liability which the Corporation may have to the Agent except only to the extent that any such expense delay in giving or failure to give notice as herein required materially prejudices the defence of such action, suit, proceeding, claim or investigation or results in any material increase in the liability which the Corporation would otherwise have under this indemnity had the Agent not so delayed in giving or failed to give the notice required hereunder.
(c) The Corporation shall be entitled, at its own expense, to participate in and, to the extent it may wish to do so, assume the defence thereof, provided such defence is conducted by experienced and competent counsel. Upon the Corporation notifying the Agent in writing of its election to assume the defence and retaining counsel, the Corporation shall not paid under subparagraph be liable to the Agent for any legal expenses subsequently incurred by them in connection with such defence. If such defence is assumed by the Corporation, the Corporation throughout the course thereof will provide copies of all relevant documentation to the Agent, will keep the Agent advised of the progress thereof and will discuss with the Agent all significant actions proposed.
(d) Notwithstanding the foregoing paragraph, the Agent shall have the right, at the Corporation's expense, to employ counsel of the Agent's choice, in respect of the defence of any action, suit, proceeding, claim or investigation if: (i) the employment of such counsel has been authorized by the Corporation; or (ii) the Corporation has not assumed the defence and employed counsel therefor within a reasonable time after receiving notice of such action, suit, proceeding, claim or investigation; or (iii) above. providedcounsel retained by the Corporation or the Agent have advised the Agent that representation of both parties by the same counsel would be inappropriate for any reason, however, that the indemnity contained in this subparagraph (iii) does not apply to any LLC Indemnitee with respect to any loss, liability, claim, damage, judgment or expense including without limitation because there may be legal defences available to the extent arising out of any untrue statement Agent, or omission to the Agent, which are different from or alleged untrue statement or omission (A) made in reliance upon and in conformity with written information furnished addition to those available to the Corporation by such LLC Indemnitee expressly for use (in an IPO Document or (B) if such untrue statement or omission or alleged untrue statement or omission was corrected in an amended or supplemented registration statement or prospectus which event and to that extent, the Corporation had furnished copies thereof to the LLC Indemnitee from which the Person asserting such loss, liability, claim, damage, judgment or expense purchased the securities that are the subject thereof on a timely basis prior to the date of sale by such LLC Indemnitee to such Person. Notwithstanding anything to the contrary herein, in no event will any LLC Indemnitee shall not have the right to seek indemnification from any Person in assume or direct the defence on the Agent's behalf) or that there is an actual or potential conflict of interest between the Corporation Group with respect to any and the Agent or between the Agent or the subject matter of the action, suit, proceeding, claim or demand against any Person investigation may not fall within the indemnity set forth herein (in the LLC Group for the satisfaction either of the Excluded Liabilities. Indemnification by the LLC. Except as provided in Section 5.04, the LLC shall, and shall cause each of its Subsidiaries that is in the LLC Group as of the Separation Date, to jointly and severally indemnify, defend and hold harmless the Corporation, each Person in which events the Corporation Group, each shareholder of the Corporation that was a member of the LLC at the time of the Separation, and each of their respective directors, officers, managers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Corporation Indemnitees”), from and against any and all Liabilities of the Corporation Indemnitees relating to, arising out of or resulting from any of the following items (without duplication and including, without limitation, any Liabilities asserted by way of setoff, counterclaim or defense or enforcement of any Security Interest): the failure of the LLC or any other Person in the LLC Group or any other Person to pay, perform or otherwise promptly discharge any Excluded Liabilities in accordance with their respective terms, whether prior to or after the Separation Date; any material breach by the LLC or any Person in the LLC Group of this Agreement or any Ancillary Agreement that does shall not contain its own indemnification provisions. Notwithstanding anything to the contrary herein, in no event will any Corporation Indemnitee have the right to seek indemnification from assume or direct the defence on the Agent's behalf).
(e) No admission of liability and no settlement of any Person in action, suit, proceeding, claim or investigation shall be made without the consent of the Agent. No admission of liability shall be made and the Corporation Group shall not be liable for any settlement of any action, suit, proceeding, claim or investigation made without its consent.
(f) The indemnity and contribution obligations of the Corporation shall be in addition to any liability which the Corporation may otherwise have, shall extend upon the same terms and conditions to the Indemnified Parties of the Agent and shall be binding upon and enure to the benefit of any successors, assigns, heirs and personal representatives of the Corporation, the Agent and any of the Indemnified Parties of the Agent. The foregoing provisions shall survive the completion of professional services rendered under the letter to which this is attached or any termination of the authorization given by the letter to which this is attached.
(g) The Corporation hereby constitutes the Agent as agent and trustee for each of the Indemnified Parties of the Corporation's covenants under this indemnity with respect to any claim or demand against any Person in such persons and the LLC Group for the satisfaction Agent agrees to accept such trust and to hold and enforce such covenants on behalf of such persons.
(h) The obligations of the Contributed LiabilitiesCorporation under this Section 12 are in addition to any liabilities which the Corporation may otherwise have to the Agent or any Indemnified Party.
Appears in 1 contract
Samples: Agency Agreement
