Indemnification; Contribution. (a) The Company shall indemnify and hold harmless the Foundation, its officers and directors, and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement. (b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d). (e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 3 contracts
Samples: Settlement Agreement (Rightchoice Managed Care Inc), Settlement Agreement (Rightchoice Managed Care Inc), Registration Rights Agreement (Rightchoice Managed Care Inc /De)
Indemnification; Contribution. (a) The Company shall Agilent and World Trade jointly and severally agree to indemnify and hold harmless the FoundationXxxxxxx Xxxxx and its affiliates, its officers and directors, officers, employees, agents and controlling persons (Xxxxxxx Xxxxx and each such other person being an “Indemnified Party”) from and against any agent or investment adviser thereof against and all losses, claims, damagesdamages and liabilities, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by joint or several, to which such party pursuant Indemnified Party becomes subject under any applicable law, or otherwise related to any actual or threatened action, suit, proceeding or investigation arising out of or based upon in connection with (ia) any Refinancing or any other transaction contemplated by this Agreement and (b) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus information (whether oral or preliminary Prospectus, written) or documents furnished or made available by World Trade or Agilent or any amendment of their affiliates or supplement the relevant issuer or obligor under any Refinancing, directly or through Xxxxxxx Xxxxx, to any holder of securities placed or underwritten by Xxxxxxx Xxxxx or any of its affiliates in connection with any Refinancing or otherwise contemplated pursuant to this Agreement or the foregoing, or (ii) any omission or the alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein (in the case of a Prospectus or a preliminary Prospectusnot misleading, in light of the circumstances then existing) not misleadingunder which they were made; provided, except however, that neither Agilent nor World Trade shall be liable, in each the case insofar as of this clause (b), to the same extent that any such losses, claims, damages or liabilities arise out of or are based upon, any on such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information relating to Xxxxxxx Xxxxx (or the preliminary Prospectus if the Foundation, relevant affiliate thereof) furnished to Agilent or other Person on behalf World Trade by Xxxxxxx Xxxxx expressly for use therein. In no event shall Agilent or World Trade be liable for fees and expenses of the Foundation, failed more than one counsel (in addition to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected any local counsel) separate from their own counsel for all Indemnified Parties in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company one action or any underwriter reasonably requests for use separate but similar or related actions in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act), circumstances. Agilent and World Trade jointly and severally agree to promptly reimburse any agent or investment adviser thereof against Indemnified Party for all losses, claims, damages, liabilities and expenses (including reasonable attorneys' counsel fees and expenses) as they are incurred by each such party pursuant to in connection with the investigation of, preparation for or defense of any actual pending or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, claim or any amendment action or supplement to proceeding arising from any of the foregoing, or (ii) any omission or alleged omission matters referred to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case preceding sentence, whether or not such Indemnified Party is a party and whether or not such claim, action or proceeding is initiated or brought by or on behalf of World Trade or Agilent or the relevant issuer or whether or not resulting in any liability. Neither Agilent nor World Trade shall be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there shall be a Prospectus final judgment for the plaintiff, Agilent and World Trade jointly or a preliminary Prospectusseverally agree to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment. Agilent and World Trade further jointly and severally agree not to assert any claim against any Indemnified Party for consequential, punitive or exemplary damages on any theory of liability in light connection with the transactions described in or contemplated by this Agreement. Neither Agilent nor World Trade shall be liable to an Indemnified Party under clause (a) of the circumstances then existing) not misleading, but only foregoing indemnification provision to the extent that any such untrue statement loss, claim, damage, liability or omission expense is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected finally determined by a majority in interest court of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified partiescompetent jurisdiction to have resulted primarily from such Indemnified Party’s bad faith, gross negligence or willful misconduct. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party of an Indemnified Party provided for in this Section 11 Agreement is unavailable for any reason held unenforceable, Agilent and World Trade jointly and severally agree to an indemnified party hereunder in respect of any contribute to the losses, claims, damages, damages or liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying for which such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses indemnification is held unenforceable (a) in such proportion as is appropriate to reflect the relative benefits to World Trade and Agilent, on the one hand, and Xxxxxxx Xxxxx, on the other hand, of any Refinancing, or (b) (but only if) the allocation provided for in clause (a) is for any reason prohibited by law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (a) but also World Trade and Agilent’s relative fault, on the one hand, and the relative fault of Xxxxxxx Xxxxx, on the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expensesother hand, as well as any other relevant equitable considerations. The Agilent and World Trade jointly and severally agree that for the purposes of this paragraph the relative fault of such indemnifying party benefits to World Trade and indemnified party shall be determined by reference toAgilent, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified partyon the one hand, and to Xxxxxxx Xxxxx, on the parties' relative intentother hand, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject be in the same proportion that the total value received or contemplated to be received by World Trade and/or Agilent in any Refinancing bears to the limitations set forth in Section 11(c) hereof, fees paid or to be paid to Xxxxxxx Xxxxx under any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation commitment letter or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereofengagement letter, as the case may be, without regard with respect to such Refinancing; provided, however, that, to the relative fault extent permitted by applicable law, in no event shall the Indemnified Parties be required to contribute in respect of a specific transaction an aggregate amount in excess of the fees actually paid in such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) transaction to Xxxxxxx Xxxxx. The provisions of this Section 11 foregoing contribution agreement shall be in addition to any liability which rights that any party Indemnified Party may have at common law or otherwise. No investigation or failure to investigate by any Indemnified Party shall impair the foregoing indemnification and contribution agreement or any other party right an Indemnified Party may have. Agilent and shall survive World Trade jointly and severally agree that, without Xxxxxxx Xxxxx’x prior written consent, neither World Trade nor Agilent nor any termination of their affiliates or subsidiaries will settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding in respect of which indemnification has been or could be sought under the indemnification provisions of this Agreement. The indemnification provided by this Section 11 shall remain Agreement (whether or not Xxxxxxx Xxxxx or any other Indemnified Party is an actual or potential party to such claim, action or proceeding), unless such settlement, compromise or consent (a) includes an unconditional written release, in full force form and effect irrespective substance satisfactory to Xxxxxxx Xxxxx and each Indemnified Party, from all liability arising out of such claim, action or proceeding and (b) does not include any investigation made statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any Indemnified Party. In the event that an indemnified partyIndemnified Party is requested or required to appear as a witness in any action brought by or on behalf of or against Agilent or any of its subsidiaries or affiliates in which such Indemnified Party is not named as a defendant, so long World Trade and Agilent agree to reimburse such Indemnified Party for all reasonable expenses incurred by it in connection with such Indemnified Party’s appearing and preparing to appear as such indemnified party is not guilty a witness, including, without limitation, the fees and expenses of acting its legal counsel. In the event that Xxxxxxx Xxxxx (or an affiliate of Xxxxxxx Xxxxx) acts as underwriter or placement agent in connection with a fraudulentSecurities Offering or any other offering of securities contemplated under Section 4(d) hereof or acts as arranger under any credit facilities or any other financing contemplated under Section 4(d) hereof, reckless the indemnification and contribution provisions set forth in the related placement agreement, underwriting agreement or grossly negligent mannercredit facilities, as the case may be, shall supersede and replace the provisions of this Section 6 in all respects.
Appears in 2 contracts
Samples: Related Agreement (Agilent Technologies Inc), Related Agreement (Agilent Technologies Inc)
Indemnification; Contribution. (a) The Company shall Each holder of Common Stock registered pursuant to this Agreement will indemnify and hold harmless the Foundation, its officers and directors, and Company against any agent or investment adviser thereof against all losses, claims, damagesdamages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities and expenses (including reasonable attorneys' fees and expensesor actions in respect thereof) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any Registration Statementpreliminary prospectus, any Prospectus registration statement or preliminary Prospectusprospectus, or any amendment or supplement to any of the foregoingthereto, or (ii) any arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished extent, but only to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offeringextent, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls that (i) such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission was made in the any preliminary Prospectus if the Foundationprospectus, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such registration statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectusprospectus, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to any of the foregoingCompany by such holder expressly for use therein, or (ii) any omission you failed to deliver an amendment or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only supplement to the extent prospectus that any such untrue statement or omission is the Company made in reliance on and in conformity with information with respect available to you prior to the Foundation furnished applicable date of sale of Common Stock to which the Company or claim relates and that corrected any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue a preliminary prospectus, registration statement or omission in prospectus that forms the Registration Statementbasis for a claim against the Company.
(cb) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party of any written notice under Section 7(a) above of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may shall, if a claim indemnification or contribution pursuant in respect thereof is to this Section 11 (provided that failure to give such notification shall not affect the obligations of be made against the indemnifying party pursuant under either such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to this Section 11 except to the extent notify the indemnifying party shall not relieve it from any liability that it may otherwise have been actually prejudiced as a result of such failure)to any indemnified party. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, thereof the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory thereof by notice in writing to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after . After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 either of such subsections for any legal expenses of other counsel or any other expensesexpense, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding investigation incurred prior to the foregoingassumption by the indemnifying party, if (i) unless such expenses have been specifically authorized in writing by the indemnifying party, the indemnifying party shall not have employed counsel reasonably satisfactory has failed to such indemnified party to take charge of assume the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to and employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defensecounsel, or (ii) the actual or potential defendants in, or targets of, named parties to any such action include both the indemnified party and the indemnifying party party, as appropriate, and such indemnified party and has been advised by counsel that the representation of such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to and the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counselcounsel would be inappropriate due to actual or potential differing interests between them, could result in a conflict each of interest which cases the fees of counsel for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall will be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(dc) If the indemnification from the indemnifying party provided for in this Section 11 7 is unavailable or insufficient to hold harmless an indemnified party hereunder under Section 7(a) in respect of any losses, claims, damages, damages or liabilities (or expenses action in respect thereof) referred to therein, then the each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, damages or liabilities and expenses (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company and the holder or holders from this Agreement and from the offering of the shares of Common Stock. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the indemnifying party Company and indemnified party the holders in connection with the actions which statement or omissions that resulted in such losses, claims, damages, damages or liabilities and expenses(or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, such indemnifying party by the Company or indemnified party, the holder and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The amount paid or payable by a party as a result of Company and the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto holders agree that it would not be just and equitable if contribution pursuant to this Section 11(d7(c) were determined by pro rata allocation (even if the holders were treated as one entity for such purpose) or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this Section 11(dsubsection (c). Notwithstanding Except as provided in Section 7(b), the provisions amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 11(d), no underwriter 7(c) shall be required deemed to contribute include any amount legal or other expenses reasonably incurred by such indemnified party in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of connection with investigation or defending any damages which such underwriter has otherwise been required to pay by reason of such untrue action or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionclaim. No Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. If indemnification is available Notwithstanding any provision in this Section 7(c) to the contrary, no holder shall be liable for any amount, in the aggregate, in excess of the net proceeds to such holder from the sale of such holder's shares (obtained upon exercise of Warrants) giving rise to such losses, claims, damages or liabilities.
(d) The obligations of the holders of Common Stock under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 7 shall be in addition to any liability which any party that such holders may otherwise have to any other party and shall survive any termination extend, upon the same terms and conditions to each person, if any, who controls the Company within the meaning of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerthe Act.
Appears in 2 contracts
Samples: Warrant Agreement (Commonwealth Biotechnologies Inc), Warrant Agreement (Commonwealth Biotechnologies Inc)
Indemnification; Contribution. (a) The Company shall indemnify and hold harmless agrees to indemnify, to the Foundationextent permitted by applicable law, each Holder of Registrable Securities, its officers and officers, directors, employees, agents and any agent or investment adviser thereof Affiliates and each Person that controls such Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' ’ fees and expenses) incurred by such party pursuant to any actual or threatened action, suitand expenses of investigation), proceeding or investigation arising out of or based upon (i) resulting from any untrue or alleged untrue statement of material fact contained in any Registration Statementregistration statement, any Prospectus prospectus or preliminary Prospectus, prospectus or any amendment thereof or supplement to any of the foregoingthereto, or (ii) any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, or violation or alleged violation by the Company of the Securities Act, the Exchange Act, any applicable state securities law (or any rule or regulation promulgated under any applicable state securities law), except in each case insofar as the same arise out of or are based upon, contained in any such untrue statement or omission made information furnished in reliance on and in conformity with information with respect to the Foundation furnished writing to the Company by the Foundation or its counsel such Holder expressly for use thereintherein or by such Holder’s failure to deliver a copy of the registration statement or prospectus or any amendments or supplements thereto (to the extent such delivery is required) after the Company has furnished such Holder with a sufficient number of copies of the same. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereofunderwriters, their officers, officers and directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding Holders of Registrable Securities.
(b) To the foregoing provisions of this Section 11(a)extent permitted by applicable law, each Holder shall indemnify the Company, its directors, officers, employees, agents and Affiliates and each Person that controls the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for ) against any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' ’ fees and expenses, and expenses of investigation) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) resulting from any untrue or alleged untrue statement of material fact contained in any Registration Statementthe registration statement, any Prospectus prospectus or preliminary Prospectus, prospectus or any amendment thereof or supplement to any of the foregoing, thereto or (ii) any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made contained in reliance on any information or affidavit so furnished in writing by such Holder; provided that the obligation to indemnify shall be individual, not joint and in conformity with information with respect several, for each Holder and shall be limited to the Foundation furnished net amount of proceeds received by such Holder from the sale of Registrable Securities pursuant to such registration statement. In connection with an Underwritten Offering, each Holder shall provide customary indemnification to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b)underwriters, the Foundation shall not be liable to the Company, any underwriter, their officers and directors and each such parties' officers or directors, any other Person who controls any such party underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to shall (i) give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for claim with respect to which such indemnified party may claim it seeks indemnification or contribution pursuant to this Section 11 (provided that the failure to give such notification prompt notice shall not affect the obligations of the indemnifying party pursuant impair any Person’s right to this Section 11 except indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party shall have been actually prejudiced as a result of party) and (ii) permit such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, of such claim with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to . Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal bear the reasonable fees, costs and expenses of other such separate counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed use of counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination chosen by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to represent the indemnified party would in the reasonable satisfaction judgment of the indemnified party its ability to finance present such defense, or counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such the indemnifying party and, based on advice of counsel to the indemnified party, the indemnified party shall have reasonably concluded that there may be legal defenses available to it which and/or other indemnified parties that are different from inconsistent with or additional in addition to those available to the indemnifying party which, if party; (iii) the indemnifying party and such shall not have employed counsel reasonably satisfactory to the indemnified party were to be represented by represent the same counsel, could result in indemnified party within a conflict of interest for such counsel or materially prejudice the prosecution reasonable time after written notice of the defenses available institution of such action has been delivered to such indemnified the indemnifying party, then such indemnified ; or (iv) the indemnifying party shall have requested the right indemnified party to employ separate counselcounsel at the expense of the indemnifying party. No indemnifying party shall, in which case connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one counsel or separate firm of counsel attorneys (plus one in addition to any local or regulatory counsel or firm of counsel) selected by a majority in interest of the for all indemnified parties shall be borne by parties. If such defense is assumed, the indemnifying party and the fees and expenses of all other counsel retained shall not be subject to any liability for any settlement made by the indemnified parties party without its consent (but such consent shall not be paid by the indemnified partiesunreasonably withheld). No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party shall party, consent to entry of any judgment or enter into any settlement without or compromise that does not include as an unconditional term thereof the consent (which consentgiving by the claimant or plaintiff therein, to such indemnified party, of a release from all liability in the case respect of an action, suit, such claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partylitigation.
(d) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and shall survive the Transfer of Registrable Securities.
(e) If the indemnification required by this Section 6 from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party parties in connection with the actions which resulted in such losses, claims, damages, liabilities and or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party parties shall be determined by reference to, among other things, whether any action violation referred to in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, this Section 6 has been made committed by, or relates to information supplied by, such indemnifying party or indemnified partyparties, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionviolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c6(a) hereofand Section 6(b), any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. .
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d6(e) were determined by a pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d6(e)(i). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 2 contracts
Samples: Registration Rights Agreement (IMH Financial Corp), Registration Rights Agreement (IMH Financial Corp)
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless the Foundation, its officers each Indemnitee from and directors, against any and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expensescosts of investigation) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statementprepricing prospectus, any Prospectus registration statement or preliminary Prospectus, prospectus or in any amendment or supplement to any of the foregoingthereto, or (ii) arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same such losses, claims, damages, liabilities or expenses arise out of or are based upon, upon any such untrue statement or omission or alleged untrue statement or omission which has been made therein or omitted therefrom in reliance on upon and in conformity with the information with respect relating to the Foundation a participating Holder furnished in writing to the Company by the Foundation or its counsel on behalf of a participating Holder expressly for use thereinin connection therewith. In The foregoing indemnity agreement shall be in addition to any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against an Indemnitee in respect of which indemnity may be sought against the Company, such Indemnitee shall promptly notify the Company, and the Company shall assume the defense thereof, including the employment of counsel and payment of all fees and expenses. The Indemnitee shall have the right to employ separate counsel in any such action, suit or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnitee unless (x) the Company has agreed in writing to pay such fees and expenses, (y) the Company has failed to assume the defense and employ counsel, or (z) the named parties to any such action, suit or proceeding (including any impleaded parties) include both such Indemnitee and the Company, and such Indemnitee shall have been advised by its counsel that representation of such Indemnitee and the Company by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which case the Company shall not have the right to assume the defense of such action, suit or proceeding on behalf of such Indemnitee). It is understood, however, that the Company shall, in connection with an Underwritten Offeringany one such action, suit or proceeding or separate but substantially similar or related actions, suits or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of only one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnitees not having actual or potential differing interests among themselves, and that all such fees and expenses shall be reimbursed as they are incurred. The Company shall not be liable for any settlement of any such action, suit or proceeding effected without its written consent, but if settled with such written consent, or if there be a final judgment for the plaintiff in any such action, suit or proceeding, the Company shall agrees to indemnify and hold harmless such Indemnitee, to the underwriters thereofextent provided in the preceding paragraph, their officersfrom and against any loss, directors claim, damage, liability or expense by reason of such settlement or judgment.
(c) Each of the participating Holders, severally and agents not jointly, agree to indemnify and each Person hold harmless the Company, its directors, its officers who sign the registration statement, and any person who controls such underwriters (the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) , to the same extent as provided above the foregoing indemnity from the Company to an Indemnitee, but only with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable information relating to the Foundation, any Person who participates as an underwriter such Holder furnished in the offering writing by or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests Holder expressly for use in the Registration Statement relating to such registration statement, prospectus or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectusprepricing prospectus, or any amendment or supplement to thereto. If any of the foregoingaction, suit or (ii) any omission or alleged omission to state therein a material fact required to proceeding shall be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to brought against the Company, any underwriter, each such parties' officers or of its directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)officer, or any agent such controlling person based on the registration statement, prospectus or investment advisor thereofany prepricing prospectus, if the Foundation had provided information curing or any untrue statement amendment or omission supplement thereto, and in time reasonably sufficient to prevent the inclusion respect of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of which indemnity may be sought against any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution Holder pursuant to this Section 11 9(c), such Holder shall have the rights and duties given to the Company by Section 9(b) hereof (provided except that failure to give if the Company shall have assumed the defense thereof such notification Holder shall not affect the obligations of the indemnifying party pursuant be required to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party do so, but may employ separate counsel therein and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume in the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case but the fees and expenses of one such counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by at the indemnifying party Holder's expense), and the fees Company, its directors, any such officer, and expenses of all other counsel retained any such controlling person shall have the rights and duties given to an Indemnitee by the indemnified parties Section 9(b) hereof. The foregoing indemnity agreement shall be paid by in addition to any liability which the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partyparticipating Holders may otherwise have.
(d) If the indemnification from the indemnifying party provided for in this Section 11 9 is unavailable to an indemnified party hereunder under paragraphs (a) or (c) hereof in respect of any losses, claims, damages, liabilities or expenses referred to therein, . then the an indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party Company and indemnified party of the participating Holders in connection with the actions which statements or omissions that resulted in such losses, claims, damages, liabilities and or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party the Company on the one hand and indemnified party a participating Holder on the other hand shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by the Company on the one hand or by such indemnifying party or indemnified party, participating Holder on the other hand and the parties' relative intent, knowledge, access to or information and opportunity to correct or prevent such actionstatement or omission.
(e) The Company and the participating Holders agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by a pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(d) hereof. The amount paid or payable by a an indemnified party as a result of the losses, claims, damages, liabilities and expenses referred to above in Section 9(d) hereof shall be deemed to include, subject to the limitations set forth in Section 11(c) hereofabove, any legal and or other fees and expenses reasonably incurred by such indemnified party in connection with investigating any investigation claim or defending any such action, suit or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d)9, no underwriter participating Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed proceeds to the public were offered to the public such participating Holder exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation participating Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. If .
(f) No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an indemnified party is entitled to indemnification is available or contribution under this Section 11, 9 shall be paid by the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party as such losses, claims, damages, liabilities or any other equitable consideration provided for expenses are incurred. The indemnity and contribution agreements contained in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 9 shall remain operative and in full force and effect irrespective effect, regardless of (i) any investigation made by or on behalf of an indemnified partyIndemnitee, so long as such indemnified party is not guilty the Company, its directors or officers, or any person controlling the Company, and (ii) any termination of acting in a fraudulent, reckless or grossly negligent mannerthis Agreement.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Corporate Office Properties, L.P.), Registration Rights Agreement (Corporate Office Properties Trust)
Indemnification; Contribution. (a) The Company shall indemnify agrees to indemnify, defend and hold harmless the Foundation, its officers and directors, and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents Holder and each Person person who controls such underwriters (any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each a “Holder Indemnified Party”), from and against any loss, damage, expense, liability, judgment or claim (including reasonable legal fees, investigation costs and other expenses) which such Holder Indemnified Party may incur under the Securities Act) , the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, judgment or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, except insofar as any such loss, damage, expense, liability, judgment or claim arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Holder to the same extent as provided above with respect Company expressly for use therein.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a)Company, its directors and officers and any person who controls the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)Act (each, under this Section 11 for any a “Company Indemnified Party”) to the same extent as the foregoing indemnity from the Company to each Holder Indemnified Party, but only insofar as such loss, claim, damage, liability (expense, liability, judgment or action or proceeding in respect thereof) or expense that claim arises out of an or is based upon any untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement, any Statement or Prospectus or preliminary Prospectus, or in any amendment or supplement to thereto or in any of the foregoingpreliminary prospectus, or (ii) arises out of or is based upon any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) under which they were made, not misleading, but only in connection with such information. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the extent that any Shelf Registration Statement giving rise to such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statementindemnification obligation.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of If any action, suitsuit or proceeding (each, proceeding a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or investigation or threat thereof made (b) of this Section 7, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing for which of the institution of such indemnified party may claim indemnification or contribution pursuant Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to this Section 11 (provided that failure to give notify such notification Indemnifying Party shall not affect relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the obligations right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the indemnifying party pursuant to this Section 11 except to expense of such Indemnified Party unless the extent the indemnifying party employment of such counsel shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, authorized in each case subsequently incurred writing by such indemnified party, Indemnifying Party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party such Proceeding or such Indemnifying Party shall not have employed counsel reasonably satisfactory to such indemnified party to take have charge of the defense of such action Proceeding within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction 30 days of the indemnified party its ability to finance receipt of notice thereof or such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be legal one or more defenses available to it which that are different from or from, additional to or in conflict with those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result Indemnifying Party (in a conflict of interest for which case such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ separate counsel, counsel and participate in which case the defense thereof but the fees and expenses of one such counsel or firm shall be at the expense of counsel (plus one local or regulatory counsel or firm such Indemnifying Party), in any of counsel) selected by a majority in interest of the indemnified parties which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the indemnifying party expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of all other counsel retained as contemplated by the indemnified parties second sentence of this paragraph, then such Indemnifying Party agrees that it shall be paid liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the indemnified partiesaforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No indemnified party shall Indemnifying Party shall, without the prior written consent to entry of any judgment or enter into Indemnified Party, effect any settlement without of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the consent (which consentsubject matter of such Proceeding and does not include an admission of fault, in the case culpability or a failure to act, by or on behalf of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partysuch Indemnified Party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 7 is unavailable to an indemnified party hereunder Indemnified Party under subsections (a) and (b) of this Section 7 in respect of any losses, claims, damages, liabilities expenses, liabilities, judgments or expenses claims referred to therein, then the indemnifying partyeach applicable Indemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses, liabilities and expenses or claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party Company on the one hand and indemnified party of the Holders on the other in connection with the actions statements or omissions which resulted in such losses, claims, damages, expenses, liabilities and expensesor claims, as well as any other relevant equitable considerations. The relative fault of such indemnifying party the Company on the one hand and indemnified party of the Holders on the other shall be determined by reference to, among other things, whether any action in question, including any the untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party by the Company or indemnified party, by the Holders and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities expenses, liabilities, judgments and expenses claims referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, include any reasonable legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with investigating or defending any investigation or proceeding. Proceeding.
(e) The parties hereto Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 11(d) 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d)subsection (d) above. Notwithstanding the provisions of this Section 11(d)7, no underwriter Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten sold by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. If indemnification is available under The Holders’ respective obligations to contribute pursuant to this Section 11, the indemnifying parties shall indemnify each indemnified party 7 are several in proportion to the fullest extent provided in Section 11(a) or (b) hereofrespective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration and not joint. The remedies provided for in this Section 11(d)7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(ef) The indemnity and contribution provisions of contained in this Section 11 7 shall be remain operative and in addition to any liability which any party may have to any other party full force and shall survive effect regardless of (i) any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of , (ii) any investigation made by or on behalf of an indemnified partyany Holder or any person controlling any Holder, so long as such indemnified party is not guilty or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of acting in a fraudulent, reckless or grossly negligent mannerany Registrable Security by any Holder.
Appears in 2 contracts
Samples: Registration Rights Agreement (Cooper Cameron Corp), Registration Rights Agreement (Cameron International Corp)
Indemnification; Contribution. (ai) The Company shall indemnify will indemnify, defend and hold harmless each holder of Stockholder Shares included in any registration effected pursuant to this Section 7 and each underwriter of such securities, and each person, if any, who controls each such holder and underwriter within the Foundationmeaning of the Securities Act, its officers and their respective partners, directors, officers, stockholders, members, employees, trustees, agents, advisors and any agent or investment adviser thereof Affiliates (each, an “Indemnified Person”), to the fullest extent enforceable under applicable law against all claims, losses, claimsdamages and liabilities (or actions or proceedings in respect thereof, damages, liabilities and expenses (including reasonable attorneys' fees and expenseswhether or not such Indemnified Person is a party hereto) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) on any untrue statement (or alleged untrue statement statement) of a material fact contained in any Disclosure Package, Registration Statement, any Prospectus or preliminary Prospectus, Free-Writing Prospectus or supplement or amendment thereto related to any such registration or any amendment or supplement to any of the foregoing, or omission (ii) any omission or alleged omission omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading and will reimburse each such Indemnified Person for any legal or any other expenses reasonably incurred in connection with investigating and/or defending (and/or preparing for any investigation or defense of) any such claim, loss, damage, liability, action or proceeding; provided that the Company will not be liable in any such case to any such Indemnified Person if, but only to the case extent that, any such claim, loss, damage, liability, action, proceeding or expense is finally determined by a court of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same competent jurisdiction to arise out of or are based upon, result from any such untrue statement in or omission made from written information about such Indemnified Person in reliance on its capacity as a stockholder of the Company and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly an instrument duly executed by such Indemnified Person and stated to be specifically for use therein. In connection with an Underwritten Offering.
(ii) Each holder of Stockholder Shares will, on a several (not joint) basis, if Stockholder Shares held by such holder are included in a registration effected pursuant to this Section 7, indemnify, defend and hold harmless the Company shall indemnify the underwriters thereofCompany, their officers, each of its directors and agents officers who signs the related Registration Statement and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Personperson, if any, who controls any such underwriter (the Company within the meaning of Section 15 of the Securities Act or Section 20 and each other holder of Stockholder Shares whose Shares are included in such registration to the Exchange Act)fullest extent enforceable under applicable law against all claims, under this Section 11 for any such losslosses, claim, damage, liability damages and liabilities (or action actions or proceeding proceedings in respect thereof) , whether or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and not the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(bis a party hereto) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) on any untrue statement (or alleged untrue statement statement) of a material fact contained in any such Disclosure Package, Registration Statement, any Prospectus or preliminary Prospectus, Free-Writing Prospectus or supplement or amendment related to any such registration or any amendment or supplement to any of the foregoing, or omission (ii) any omission or alleged omission omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading and will reimburse the Company, such directors, officers and controlling persons and such other holders for any legal or any other expenses reasonably incurred in connection with investigating and/or defending (in the case of a Prospectus and/or preparing for any investigation or a preliminary Prospectusdefense of) any such claim, loss, damage, liability, action or proceeding, in light of each case to the circumstances then existing) not misleadingextent, but only to the extent extent, that any such claim, loss, damage, liability, action, proceeding or expense is finally determined by a court of competent jurisdiction to arise out of or result from any untrue statement in or omission is made from written information about such holder in reliance on its capacity as a stockholder of the Company and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel an instrument duly executed by such holder and stated to be specifically for inclusion use therein. Notwithstanding ; provided that the foregoing provisions liability of any such holder under this Section 13(b), the Foundation 7(f) (whether in respect of indemnification or contribution obligations) shall not be liable limited to the Company, any underwriter, each net sales proceeds actually received by such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 holder as a result of the Securities Act or Section 20 sale by it of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission Stockholder Shares in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statementregistration.
(ciii) Any Person Each party entitled to indemnification hereunder agrees under this Section 7(f) (the “Indemnified Party”) shall give notice to each party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, provided that the failure of any Indemnified Party to give prompt written notice to as provided herein shall not relieve the indemnifying party after the receipt by such indemnified party Indemnifying Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to its obligations under this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 7(f), except to the extent that the indemnifying party shall have been actually Indemnifying Party is materially prejudiced as a result or otherwise forfeits substantive rights or defenses by reason of such failure). In case If notice of commencement of any such action shall be brought against any indemnified party and it shall notify is given to the indemnifying party of the commencement thereofIndemnifying Party as provided above, the indemnifying party Indemnifying Party shall be entitled to participate therein in and, to the extent that it shall may wish, jointly with any other indemnifying party Indemnifying Party similarly notified, to assume the defense thereofof such claim or any litigation resulting therefrom at its own expenses, with counsel chosen by it, which counsel shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld). Each Indemnified Party may employ separate counsel and participate in such defense, but the fees and expenses of such counsel shall be paid by the Indemnified Party unless (a) the Indemnifying Party agrees to pay such fees and expenses of such counsel, (b) the Indemnifying Party fails to assume the defense of such action with counsel reasonably satisfactory to such indemnified party the Indemnified Party or (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (ic) the indemnifying party shall not have employed counsel reasonably satisfactory named parties to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of any such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactoryincluding any impleaded parties) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised by its counsel that either (1) representation of such indemnified party Indemnified Party and such indemnified party shall have reasonably concluded that the Indemnifying Party by the same counsel would be inappropriate under applicable standards of professional conduct or (2) there may be one or more legal defenses available to it the Indemnified Party which are different from or additional to those available to the indemnifying party whichIndemnifying Party. In any of such cases, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party Indemnifying Party shall not have the right to employ separate counselassume the defense of such action on behalf of such Indemnified Party, in which case it being understood, however, that the Indemnifying Party shall not be liable for the reasonable fees and expenses of more than one counsel or separate firm of counsel attorneys (plus one in addition to any local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties for all Indemnified Parties and all such expenses shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified partiesreimbursed as incurred. No indemnified party shall Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect of such claim or litigation. No Indemnifying Party shall be liable for any settlement entered into without the consent (which its written consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, which consent shall not be unreasonably withheld) . Each Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with defense of each indemnifying partysuch claim or litigation resulting therefrom.
(div) If the indemnification from the indemnifying party provided for in this Section 11 7(f) is held by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in Indemnified Party with respect of to any lossesclaim, claimsloss, damagesdamage, liabilities liability or expenses expense referred to thereinherein, then the indemnifying partyeach Indemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party hereunder, shall severally, and not jointly, contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossesclaim, claimsloss, damagesdamage, liabilities and expenses liability or expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party Indemnifying Party, on the one hand, or of the Indemnified Party, on the other hand, in connection with the actions which resulted in such lossesclaim, claimsloss, damagesdamage, liabilities and expensesliability or expense, as well as any other relevant equitable considerations. The relative fault of such indemnifying party the Indemnifying Party and indemnified party of the Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by such indemnifying party Indemnifying Party or indemnified party, by the Indemnified Party and the parties' ’ relative intent, knowledge, access to information information, and opportunity to correct or prevent such actionstatement or omission. The amount paid or payable by a party as a result of the lossesany claim, claimsloss, damagesdamage, liabilities and expenses liability or expense referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c7(f)(ii) hereofand (iii) above, any legal and or other fees and fees, changes or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. Anything to the contrary notwithstanding, the total amount to be contributed by any holder of Stockholder Shares shall be limited to the net proceeds (after deducting the underwriters’ discounts and commissions) received by such Stockholder in the offering. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d7(f)(iv) were determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionimmediately preceding paragraph. No Person person guilty of fraudulent misrepresentation (within the meaning meeting of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.”
Appears in 1 contract
Samples: Stockholders Agreement (Critical Homecare Solutions Holdings, Inc.)
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless the FoundationAdvisor and its affiliates and each of their respective partners, its officers and executives, officers, directors, employees, agents and advisors (each such person and entity, including the Advisor, being an “Indemnified Party”) from and against any agent or investment adviser thereof against and all losses, claims, damages, judgments, liabilities and expenses, joint, several or otherwise, to which such Indemnified Party may become subject under any applicable federal or state law, or otherwise, related to or arising out of any activity contemplated by this Agreement or the Advisor’s retention pursuant to, and the Advisor’s or its affiliates’ performance of the services contemplated by, this Agreement or any action, claim, proceeding or investigation, whether or not in connection with pending litigation related thereto and will reimburse any Indemnified Party for all expenses (including reasonable attorneys' counsel fees and expensesdisbursements) upon request as they are incurred by such party pursuant to in connection with the investigation of, preparation for or defense of any actual pending or threatened action, suitclaim, litigation, proceeding or investigation arising out of therefrom, whether or based upon (i) any untrue not such Indemnified Party is a party and whether or alleged untrue statement of material fact contained in any Registration Statementnot such action, any Prospectus claim, litigation, proceeding or preliminary Prospectus, investigation is initiated or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company brought by the Foundation or its counsel expressly for use therein. In connection with an Underwritten OfferingCompany; provided, the Company shall indemnify the underwriters thereofhowever, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), that the Company shall not be liable under the foregoing indemnification provision (and amounts previously paid that are determined not required to be paid by the Company pursuant to the Foundation, terms of this paragraph shall be repaid promptly) to the extent that any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, judgment, liability or expense is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted solely from the Advisor’s willful misconduct or gross negligence in connection with any of the advice, actions, inactions or services referred to above. The Company also agrees that no Indemnified Party shall have any liability (whether direct or action indirect, in contract or proceeding in respect thereoftort or otherwise) to the Company related to or expense that arises arising out of an untrue statement the Advisor’s retention pursuant to or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf performance of the Foundationservices contemplated by this Agreement, failed to send or deliver a copy of a final Prospectus except to the Person asserting extent that the claim prior Advisor’s conduct in connection with such retention or performance is found in a final, non-appealable judgment by a court of competent jurisdiction to the written confirmation of the sale of the Registrable Securities to such Person and such statement have constituted willful misconduct or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreementgross negligence.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 hereunder is finally judicially determined by a court of competent jurisdiction to be unavailable to an indemnified party hereunder Indemnified Party, or insufficient to hold any Indemnified Party harmless, in respect of any losses, claims, damages, judgments, liabilities or expenses referred (other than any losses, claims, damages, judgments, liabilities or expenses found in a final non-appealable judgment by a court of competent jurisdiction to thereinhave resulted solely from an Indemnified Party’s willful misconduct or gross negligence), then the indemnifying partyCompany, in lieu of indemnifying such indemnified partyIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, judgments, liabilities and or expenses (i) in such proportion as is appropriate to reflect the relative fault of benefits received, or sought to be received, by the indemnifying party Company, on the one hand, and indemnified party the Indemnified Parties, on the other hand, in connection with the actions transactions to which resulted such indemnification, contribution or reimbursement is sought, or (ii) if (but only if) the allocation provided by clause (i) above is not permitted by applicable law, in such lossesproportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company, claimson the one hand, damagesand the Indemnified Parties, liabilities and expenseson the other hand, as well as any other relevant equitable considerations. The relative fault ; provided, however, that in no event shall the Indemnified Parties’ aggregate contribution hereunder exceed the amount of such indemnifying party and indemnified party shall be determined fees actually received by reference to, among other things, whether any action the Advisor in question, including any untrue or alleged untrue statement respect of a material fact or omission or alleged omission the transaction at issue pursuant to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such actionthis Agreement. The amount paid or payable by a party as a result of the losses, claims, damages, damages and liabilities and expenses referred to above shall will be deemed to include, subject to the limitations set forth in Section 11(c) hereof, include any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with defending any investigation action or proceedingclaim. The parties hereto Company and the Advisor agree that it would not be just and equitable if contribution pursuant to this Section 11(d) paragraph were determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d)paragraph. Notwithstanding the provisions of this Section 11(d)The indemnity, no underwriter shall be required to contribute any amount in excess contribution and expense reimbursement obligations of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available Company under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 14 shall be in addition to any liability which any party the Company may have to have, and notwithstanding any other party and provision of this Agreement, shall survive any the termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Samples: Financial Advisor Agreement (Tandem Health Care, Inc.)
Indemnification; Contribution. (a) The Company shall indemnify and hold harmless the FoundationHolders, its officers their officers, directors and directorsMembers, and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' ’ fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation Holders furnished to the Company by the Foundation Holders or its their counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the FoundationHolders. Notwithstanding the foregoing provisions of this Section 11(a13(a), the Company shall not be liable to the FoundationHolders, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 13 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the FoundationHolders, or other Person on behalf of the FoundationHolders, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely namely furnished sufficient copies thereof to the Foundation Holders in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation Holders shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the FoundationHolders, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's ’s officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' ’ fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation Holders furnished to the Company or any underwriter by the Foundation Holders or its their counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation Holders shall not be liable to the Company, any underwriter, each such parties' ’ officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation Holders had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 13 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 13 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 13 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 13 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c13(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d13(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d13(d). Notwithstanding the provisions of this Section 11(d13(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation Holders shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation Holders were offered to the public exceeds the amount of any damages which the Foundation Holders has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 1113, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a13(a) or (bSection 13(b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d13(d).
(e) The provisions of this Section 11 13 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 13 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Samples: Registration Rights Agreement
Indemnification; Contribution. (a) The Company shall Agilent and World Trade jointly and severally agree to indemnify and hold harmless the FoundationLloyds and its affiliates, its officers and directors, officers, employees, agents and controlling persons (Lloyds and each such other person being an “Indemnified Party”) from and against any agent or investment adviser thereof against and all losses, claims, damagesdamages and liabilities, joint or several, to which such Indemnified Party becomes subject under any applicable law, or otherwise related to or arising out of or in connection with (a) any transaction contemplated by this Agreement, or (b) any statement which shall have been false or incorrect in any material respect when made or deemed made in any information or documents furnished or made available by World Trade or Agilent or any of their affiliates in connection with the transactions contemplated pursuant to this Agreement; provided, that neither Agilent nor World Trade shall be liable under this Section 4 for any losses, claims, damages or liabilities to the extent related to or arising out of or in connection with (1) any breach by Agilent or World Trade of (x) any representation or warranty set forth in Section 2.10 of the Agilent Agreement or (y) any covenant set forth in Section 3.15 of the Agilent Agreement or (2) except for obligations of World Trade that are expressly set forth in a Novation Agreement dated on or after the Lloyds Funding Date, any assignment or other transfer (x) by the Trust or Xxxxxxx Xxxxx Capital Services, Inc. (“Xxxxxxx Xxxxx”) to Lloyds of all or any of the Trust’s or Xxxxxxx Xxxxx’x, as applicable, rights and/or obligations under the Prior Repo Agreement and the Prior Agilent Guaranty or (y) by Lloyds or any transferee under this Agreement or the Repo Agreement of all or any of the Repo Rights and Obligations and/or Related Agreement Rights and Obligations, in each case of clause (1) and (2) without limiting the other liabilities of Agilent or World Trade hereunder or under any of the other Operative Documents. In no event shall Agilent or World Trade be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. Agilent and World Trade jointly and severally agree to promptly reimburse any Indemnified Party for all expenses (including reasonable attorneys' counsel fees and expenses) as they are incurred by such party pursuant to in connection with the investigation of, preparation for or defense of any actual pending or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, claim or any amendment action or supplement to proceeding arising from any of the foregoing, or (ii) any omission or alleged omission matters referred to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case preceding sentence, whether or not such Indemnified Party is a party and whether or not such claim, action or proceeding is initiated or brought by or on behalf of World Trade or Agilent whether or not resulting in any liability. Neither Agilent nor World Trade shall be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there shall be a Prospectus final judgment for the plaintiff, Agilent and World Trade jointly or a preliminary Prospectusseverally agree to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment. Agilent and World Trade further jointly and severally agree not to assert any claim against any Indemnified Party for consequential, punitive or exemplary damages on any theory of liability in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company transactions described in or contemplated by this Agreement. Neither Agilent nor World Trade shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to an Indemnified Party under the Foundation, foregoing indemnification provision to the extent that any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or expense is finally determined by a court of competent jurisdiction to have resulted primarily from such Indemnified Party’s bad faith, gross negligence or willful misconduct. Agilent and World Trade jointly and severally agree that, without Lloyds’s prior written consent, neither World Trade nor Agilent nor any of their affiliates or subsidiaries will settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding in respect thereofof which indemnification has been or could be sought under the indemnification provisions of this Agreement (whether or not Lloyds or any other Indemnified Party is an actual or potential party to such claim, action or proceeding), unless such settlement, compromise or consent (a) or expense that arises includes an unconditional written release, in form and substance satisfactory to Lloyds and each Indemnified Party, from all liability arising out of an untrue such claim, action or proceeding and (b) does not include any statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundationas to, or other Person an admission of, fault, culpability or failure to act by or on behalf of any Indemnified Party. In the Foundation, failed event that an Indemnified Party is requested or required to send appear as a witness in any action brought by or deliver a copy on behalf of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company against Agilent or any underwriter reasonably requests of its subsidiaries or affiliates in which such Indemnified Party is not named as a defendant, World Trade and Agilent agree to reimburse such Indemnified Party for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and reasonable expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory such Indemnified Party’s appearing and preparing to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long appear as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defensea witness, or (ii) the actual or potential defendants inincluding, or targets ofwithout limitation, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of its legal counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall indemnify and hold harmless agrees to indemnify, to the Foundationextent permitted by law, each holder of Registrable Securities, its officers and officers, directors, employees, agents and any agent or investment adviser thereof Affiliates and each Person that controls such holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses (expenses, including reasonable attorneys' ’ fees and expenses) incurred by such party pursuant to any actual or threatened actiondisbursements and expenses of investigation, suit, proceeding or investigation arising out of or based upon (i) resulting from any untrue or alleged untrue statement of material fact contained in any Registration Statementregistration statement, any Prospectus prospectus or preliminary Prospectus, prospectus or any amendment thereof or supplement to any of the foregoingthereto, or (ii) any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, or violation or alleged violation by the Company of the Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law, except in each case insofar as the same arise out of are caused by or are based upon, contained in any such untrue statement or omission made information furnished in reliance on and in conformity with information with respect to the Foundation furnished writing to the Company by the Foundation or its counsel such holder expressly for use thereintherein or by such holder’s failure to deliver a copy of the registration statement or prospectus or any amendments or supplements thereto after the Company has furnished such holder with a sufficient number of copies of the same. In connection with an Underwritten Offeringunderwritten offering, the Company shall indemnify the underwriters thereofsuch underwriters, their officers, officers and directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale holders of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this AgreementSecurities.
(b) In connection with any registration statement in which a holder of Registrable Securities pursuant to this Agreementis participating, the Foundation each such holder shall furnish to the Company and any underwriter in writing such information, including the name, address information and the amount of Registrable Securities held by the Foundation, affidavits as the Company or any underwriter reasonably requests for use in the Registration Statement relating to connection with any such registration statement or prospectus and, to the related Prospectus and agrees to extent permitted by law, shall indemnify and hold harmless the Company, any underwriterits directors, each such party's officers officers, employees, agents and directors Affiliates and each Person who controls each such party the Company (within the meaning of Section 15 of the Securities Act or Section 20 of and the Exchange Act), and ) against any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) resulting from any untrue or alleged untrue statement of material fact contained in any Registration Statementthe registration statement, any Prospectus prospectus or preliminary Prospectus, prospectus or any amendment thereof or supplement to any of the foregoing, thereto or (ii) any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made contained in reliance on any writing furnished by such holder for use in such registration statement, prospectus or preliminary prospectus or any amendment or supplement thereto; provided that the obligation to indemnify shall be individual, not joint and in conformity with information with respect several, for each holder and shall be limited to the Foundation furnished net amount of proceeds received by such holder from the sale of Registrable Securities pursuant to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statementregistration statement.
(c) Any Person entitled to indemnification hereunder agrees to shall (i) give prompt written notice to the indemnifying party after of any claim with respect to which it seeks indemnification (provided that the receipt by failure to give prompt notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment (x) a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim or (y) such indemnified party of any written notice of the commencement of any action, suit, proceeding has one or investigation or threat thereof made in writing for which more defenses to such indemnified party may claim indemnification or contribution pursuant that are not available to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the party, permit such indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, of such claim with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to . If such indemnified party of its election so to assume the defense thereofis assumed, the indemnifying party shall not be liable to settle such claim unless the indemnified party under this Section 11 for is released and discharged of any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) liability and the indemnifying party shall not have employed counsel reasonably satisfactory be subject to such any liability for any settlement made by the indemnified party to take charge of without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party claim shall not have demonstrated be obligated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case pay the fees and expenses of more than one counsel or firm for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of counsel (plus one local or regulatory counsel or firm any indemnified party a conflict of counsel) selected by a majority in interest may exist between such indemnified party and any other of the such indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent with respect to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partysuch claim.
(d) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and shall survive the transfer of securities.
(e) If the indemnification required by this Section 6 from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party parties in connection with the actions which resulted in such losses, claims, damages, liabilities and or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, violation has been made committed by, or relates to information supplied by, such indemnifying party or indemnified partyparties, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionviolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c6(a) hereofand Section 6(b), any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. .
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d6(e) were determined solely by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d6(e)(i). Notwithstanding ; provided, however, that with respect to any pro rata allocation, the provisions holders of this Section 11(d), no underwriter Registrable Securities included in any such registration shall be required deemed to contribute any amount in excess have only received the net proceeds from such holders’ sales of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which in such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionregistration. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Samples: Registration Rights Agreement (Dura Automotive Systems Inc)
Indemnification; Contribution. (ai) The In the event of any registration of any Registrable Securities pursuant to the terms of Section 6, the Company shall will indemnify and hold harmless harmless, to the Foundationfullest extent permitted by law, its officers each of the Designated Holders and their respective Affiliates, directors, officers, partners, trustees, employees, legal counsel, accountants, financial advisors and agents, and each other Person, if any, who controls (within the meaning of the Securities Act and the Exchange Act) such Designated Holder or any agent or investment adviser thereof such directors, officers, partners, trustees, employees, legal counsel, accountants, financial advisors and agents (each of the foregoing, a "designated indemnified party") against any and all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expensescosts of investigation), joint or several, to which such designated indemnified party may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions or proceedings in respect thereof) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising arise out of or are based upon (ix) any untrue statement or alleged untrue statement of any material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (iiy) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (not misleading contained in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any Registration Statement under which such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of Registrable Securities were registered under the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), PROVIDED, HOWEVER, that the Company shall not be liable in any such case to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for extent that any such loss, claim, damage, damage or liability (or action actions or proceeding proceedings in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or is based upon (ix) any untrue or alleged untrue statement of any material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (iiy) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (not misleading in the case of a Prospectus such Registration Statement, or a preliminary Prospectusamendment or supplement thereto, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on upon and in conformity with written information with respect to the Foundation concerning such Designated Holder and furnished to the Company or for use in the preparation thereof.
(ii) The Company may require, as a condition to including any underwriter by Registrable Securities in any Registration Statement filed pursuant to Section 6, that the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b)Company shall have received an undertaking from each Designated Holder selling such Registrable Securities, the Foundation shall severally and not be liable jointly, to indemnify and hold harmless the Company, any underwriter, each such parties' officers or its directors, any officers, legal counsel, accountants and financial advisors and each other Person Person, if any, who controls any such party (within the meaning of Section 15 the Securities Act and the Exchange Act) the Company or any such directors, officers, legal counsel, accountants and financial advisors (each of the foregoing, a "Company Indemnified Party") against any losses, claims, damages, liabilities or expenses, joint or several, to which such Company Indemnified Party may become subject under the Securities Act or Section 20 otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions or proceedings in respect thereof) arise out of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing are based upon (x) any untrue statement or alleged untrue statement of a material fact or (y) any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading contained in time reasonably sufficient to prevent any Registration Statement under which such Registrable Securities were registered under the inclusion of Securities Act or any amendment or supplement thereto, if such untrue statement or omission was made in reliance upon and in conformity with written information concerning such Designated Holder and furnished to the Registration StatementCompany; PROVIDED, in each instance, that any Designated Holder's maximum liability in respect of such indemnification obligations shall be limited to the amount of net (pre-tax) proceeds actually received by such Designated Holder pursuant to the sale of such Registrable Securities.
(ciii) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such indemnified party any designated Indemnified Party or Company Indemnified Party (each, an "Indemnified Party") of any written notice of the commencement of any action, suit, proceeding or investigation or threat threatened thereof made in writing for which such indemnified party may the Indemnified Party intends to claim indemnification or contribution pursuant to this Section 11 (provided Agreement, such Indemnified Party will give written notice thereof to the Indemnifying Party; PROVIDED, HOWEVER, that the failure of any Indemnified Party to give such notification notice as provided herein shall not affect relieve the Indemnifying Party of its obligations of the indemnifying party pursuant to under this Section 11 Agreement, except to the extent that the indemnifying party shall have been Indemnifying Party is actually prejudiced as a result by such failure to give notice. If notice of such failure). In case commencement of any such action shall be is brought against any indemnified party and it shall notify the indemnifying party of the commencement thereofan Indemnified Party, the indemnifying party shall be entitled to Indemnifying Party may, at its expense, participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to in and assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who Indemnified Party. The Indemnified Party shall not, except with have the consent of the indemnified party, be right to employ separate counsel to the indemnifying party), in any such action and after notice from the indemnifying party to such indemnified party of its election so to assume participate in the defense thereof, but the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal fees and expenses of other such counsel or any other expenses, in each case subsequently incurred shall be paid by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if Indemnified Party unless (i) the indemnifying party shall not have employed counsel reasonably satisfactory Indemnifying Party agrees to such indemnified party pay the same, (ii) the Indemnifying Party fails to take charge of assume the defense of such action within a with counsel satisfactory to the Indemnified Party in its reasonable time after notice of commencement of judgment or (iii) the named parties to any such action (so long as such failure to employ counsel is not the result of an unreasonable determination including any impleaded parties) have been advised by such indemnified party counsel in writing that either (x) representation of such Indemnified Party and the Indemnifying Party by the same counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction would be inappropriate under applicable standards of the indemnified party its ability to finance such defense, professional conduct or (iiy) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be one or more legal defenses available to it the Indemnified Party which are different from or additional to those available to the indemnifying party which, if Indemnifying Party. In no event shall the indemnifying party and such indemnified party were to Indemnifying Party be represented by the same counsel, could result in a conflict of interest responsible for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of more than one counsel or firm of counsel (plus one in addition to local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of for all other counsel retained by the indemnified parties shall be paid by the indemnified partiesIndemnified Parties. No indemnified party Indemnifying Party or Indemnified Party shall consent to entry of any judgment or enter into any settlement without the written consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d)other.
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Indemnification; Contribution. (a) Indemnification by the Company. The Company shall agrees to indemnify and hold harmless harmless, to the Foundationfull extent permitted by law, its officers (i) each holder of Registrable Securities, (ii) each Person who controls such holder (within the meaning of the Act), (iii) any investment advisor thereof or financial agent or counsel therefor, and (iv) the trustees, officers, directors, partners, employees, representatives and/or agents, as applicable, of each Person described in the foregoing clauses (i) through (iii), from and against any agent or investment adviser thereof against and all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred caused by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statementregistration statement, any Prospectus prospectus or preliminary Prospectusprospectus (or any amendments or supplements thereto), including any document incorporated by reference therein, or any amendment or supplement to any of the foregoing, or (ii) caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus prospectus or a preliminary Prospectusprospectus, in light of the circumstances then existingunder which they were made) not misleading, except in each case insofar as the same arise out of or are based uponcaused by, contained in, or, with respect to any material omission, omitted from, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation indemnified parties or any underwriter or person controlling or affiliated with an underwriter furnished in writing to the Company by the Foundation or its counsel such indemnified party expressly for use therein. In connection with an Underwritten OfferingThe Company will also indemnify and hold harmless (A) any underwriters of the Registrable Securities, the Company shall indemnify the underwriters thereof, their officers, directors and agents and (B) each Person who controls such underwriters (within the meaning of Section 15 the Act), and (C) the officers, directors, partners, employees, representatives and/or agents of each Person described in the Securities Act or Section 20 of the Exchange Actforegoing clauses (A) and (B), to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale holders of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this AgreementSecurities.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Samples: Registration Rights Agreement (Cybershop International Inc)
Indemnification; Contribution. (ai) The Company shall indemnify and hold harmless hereby indemnifies, to the Foundationfullest extent permitted by law, each holder of Registrable Securities, its officers and directors, if any, and any agent or investment adviser thereof each person, if any, who controls such holder within the meaning of Section 15 of the Securities Act, against all losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses (including reasonable attorneys' fees and expenses) incurred under the Securities Act or common law or otherwise), joint or several, caused by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statementregistration statement, prospectus (as amended or supplemented if the Company shall have furnished any Prospectus amendments or supplements thereto) or preliminary Prospectusprospectus, or any amendment or supplement to any of the foregoing, or (ii) caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectustherein, in light of the circumstances then existing) not misleading; provided, except in each case insofar as the same arise out of or are based uponhowever, that such indemnification shall not extend to any such losses, claims, damages, liabilities (or proceedings in respect thereof) or expenses which are caused solely by any untrue statement or alleged untrue statement contained in, or by any omission made or alleged omission from, information furnished in reliance on and in conformity with information with respect to the Foundation furnished writing to the Company by the Foundation or its counsel such holder expressly for use therein. In connection with an Underwritten Offering.
(ii) If the offering pursuant to any registration statement provided for under this Section 1 is effected by underwriters, the Company shall agrees to enter into an underwriting agreement in customary form and substance with such underwriters and to indemnify the underwriters thereofsuch underwriters, their officersofficers and directors, directors and agents if any, and each Person person, if any, who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above in the preceding paragraph (i) of this Section 1(e) with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions holders of this Section 11(a)Registrable Securities; provided, however, the Company shall not be liable required to the Foundationindemnity any such underwriter, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, officer or director of such underwriter or any person who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of Act, to the Exchange Act), under this Section 11 for any such extent that the loss, claim, damage, liability (or action or proceeding proceedings in respect thereof) or expense for which
(iii) In connection with any registration statement with respect to which a holder of Registrable Securities is participating, each such holder shall furnish to the Company in writing such information as shall be reasonably requested by the Company for use in any such registration statement or prospectus and shall indemnify severally and not jointly, to the fullest extent permitted by law, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act, against any losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses resulting from any untrue statement or alleged untrue statement of a material fact or any omission or alleged omission of a material fact required to be stated or necessary to make the statements in the registration statement or prospectus or preliminary prospectus or any amendment thereof or supplement thereto, not misleading; provided, however, that each such holder shall be liable hereunder in any such case if and only to the extent that any such loss, claim, damage or liability arises solely out of or is based solely upon an untrue statement or alleged untrue statement or omission or alleged omission made in the preliminary Prospectus if the Foundationreliance upon and in conformity with information pertaining to such holder, or other Person on behalf of the Foundationas such, failed to send or deliver a copy of a final Prospectus furnished in writing to the Person asserting Company by such holder specifically for use in such registration statement or prospectus; and provided, further, however, that the claim prior liability of each holder hereunder shall be limited solely to such amount of any such loss, claim, damage, liability or expense which is equal to the written confirmation of proportion that the sale public offering price of the Registrable Securities to sold by such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.holder under such
(biv) In connection with If the offering pursuant to any registration statement with respect to which holders of Registrable Securities pursuant to this Agreementare participating, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held is effected by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriterunderwriters, each such party's holder agrees to enter into an underwriting agreement in customary form and substance with such underwriters, and to indemnify such underwriters, their officers and directors directors, if any, and each Person person, if any, who controls each such party (underwriters within the meaning of Section 15 of the Securities Act or Section 20 to the same extent as provided in the preceding paragraph with respect to indemnification by such holder of the Exchange Act)Company, and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant but subject to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained the same limitation as set forth in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement the proviso to any of the foregoing, or paragraph (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existingthis Section 1(e) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to indemnification by the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of such underwriters, officers, directors and controlling persons.
(v) Any person seeking indemnification under provision of this Section 13(b)1(e) shall, the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party promptly after the receipt by such indemnified party person of any written notice of the commencement of any action, suit, proceeding claim or investigation or threat thereof made proceeding, notify each party against whom indemnification is to be sought in writing for which such indemnified of the commencement thereof; provided, however, the failure so to notify an indemnifying party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of relieve the indemnifying party pursuant to from any liability which it may have under this Section 11 1(e) (except to the extent that it has been prejudiced in any material respect by such failure) or from any liability which the indemnifying party shall have been actually prejudiced as a result of such failure)may otherwise have. In case any such action shall be action, suit, claim or proceeding is brought against any indemnified party party, and it shall notify the notifies an indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying may elect by written notice delivered to the indemnified party similarly notifiedpromptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party (who shall notparty. Notwithstanding the foregoing, except with the consent of the indemnified partyparty or parties shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be counsel to at the indemnifying party), and after notice from the indemnifying party to expense of such indemnified party or parties unless (i) the employment of its election so such counsel shall have been authorized in writing by one of the indemnifying parties (provided that in the case of indemnification pursuant to assume the defense thereofparagraphs (iii) or (iv) of this Section 1(e), the indemnifying party employment of such counsel shall have been authorized by not be liable to such indemnified party under this Section 11 for any legal expenses less than 66 2/3% of other counsel or any other expenses, the holders of Registrable Securities who are participating in each case subsequently incurred by such indemnified party, the registration in respect of which indemnification is sought) in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoingsuch suit, if action, claim or proceeding; (iii) the indemnifying party parties shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action action, suit, claim or proceeding within a reasonable time after notice of commencement of such action the action, suit, claim or proceeding; or (so long as such failure to employ counsel is not the result of an unreasonable determination by iii) such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party parties shall have reasonably concluded that there may be legal defenses available to it or them which are different from or additional to those available to one or all of the indemnifying party which, if parties (in which case the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party parties shall not have the right to employ separate counseldirect the defense of such action, suit, claim or proceeding on behalf of the indemnified party or parties), in any of which case events the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified party or parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified Anything in this paragraph (v) to the contrary notwithstanding, an indemnifying party shall consent to entry not be liable for the settlement of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, effected without its prior written consent (which consent shall not be unreasonably withheld) ). Such indemnification shall remain in full force and effect regardless of each indemnifying partyany investigation made by or on behalf of a participating holder of Registrable Securities, its officers, directors or any person, if any, who controls such holder as aforesaid, and shall survive the sale, transfer or other disposition of such securities by such holder.
(dvi) If for any reason the foregoing indemnification from the indemnifying party provided for in this Section 11 is unavailable unavailable, or is insufficient to hold harmless, an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to thereinparty, then the indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such the indemnified party as a result of such losses, claims, damages, liabilities and or expenses (x) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other hand, or (y) if the allocation provided by clause (x) above is not permitted by applicable law or provides a lesser sum to the indemnified party than the amount hereinafter calculated, in such proportion as is appropriate to reflect not only the relative benefits received by the indemnifying party on the one hand (taking into consideration the fact that the registration rights provided in this Section 1 are intended and hereby understood to be a material inducement to the Purchasers to purchase the Registrable Securities and, in respect of this Agreement, constitutes good and valuable consideration) and the indemnified party on the other, but also the relative fault of the indemnifying party and the indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as addition to any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d)foregoing, no underwriter shall be required to contribute any amount in excess of the amount by which the total aggregate price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue statement or omission or alleged untrue statement or omission or alleged omission omission; and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. If indemnification is available under The obligation of any underwriters to provide contribution pursuant to this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a1(e) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be several and not joint in addition proportion to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannertheir respective underwriting commitments.
Appears in 1 contract
Samples: Registration and Preemptive Rights Agreement (Medialink Worldwide Inc)
Indemnification; Contribution. (a) The Company shall indemnify and hold harmless the Foundation, its officers and directors, and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and Client agrees to indemnify and hold harmless each of CA and Xxxxxx (together with their affiliates and their respective control persons, directors, officers, employees and agents, “Indemnified Persons”) to the Companyfullest extent permitted by law against any and all claims, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities liabilities, costs and expenses as incurred (including all reasonable attorneys' fees and expensesdisbursements of counsel and all reasonable travel and other out-of-pocket expenses reasonably incurred in connection with the investigation of, preparation for and defense of any pending or threatened claim, action, proceeding or investigation and any litigation or other proceeding arising therefrom, to which an Indemnified Person may become subject) incurred by each such party pursuant (collectively, “Damages”) arising out of or related to any actual or threatened actionproposed Private Placement or CA’s and Xxxxxx’x engagement hereunder; provided, suithowever, proceeding that there shall be excluded from such indemnification any such portion of such Damages as are found in a final judgment by a court of competent jurisdiction to have resulted solely from the willful misconduct or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any gross negligence on the part of the foregoingIndemnified Person, other than any action undertaken at the written request or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make with the statements therein (written consent of Client. The foregoing indemnification obligation is in the case of a Prospectus or a preliminary Prospectusaddition to, and not in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directorslimitation of, any other rights CA and/or Xxxxxx may have, including but not limited to any right of contribution. In the event that the foregoing indemnity is unavailable or insufficient to hold harmless an Indemnified Person, then Client shall contribute to amounts paid or payable by an Indemnified Person who controls any in respect of such party (within Damages in such proportion as appropriately reflects the meaning relative benefits received by it on the one hand and CA and/or Xxxxxx, as applicable, on the other. If applicable law does not permit allocation solely on the basis of Section 15 benefits, then such contribution shall be made in such proportion as appropriately reflects both the relative benefits and relative fault of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice parties and other relevant equitable considerations. The foregoing is subject to the indemnifying party after limitation that in no event shall either CA’s or Xxxxxx’x aggregate contributions in respect of Damages exceed the receipt amount of fees actually received by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution person pursuant to this Section 11 (provided that failure Agreement. For purposes hereof, relative benefits to give such notification shall not affect the obligations Client, CA and Xxxxxx of the indemnifying party Private Placement or other similar transaction shall be deemed to be in the same proportion that the total value paid or received or contemplated to be paid or received by Client and/or its security holders in connection with the Private Placement or other similar transaction bears to the fees paid to CA and Xxxxxx, respectively, pursuant to this Section 11 except their engagement in respect of such Private Placement. CA and/or Xxxxxx shall promptly notify Client of any claim or threatened claim being asserted against such person which would give rise to the extent the indemnifying party an indemnification hereunder, and agrees that Client shall have been actually prejudiced as a result the right to participate in the defense of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein claim and, to the extent that it Client shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with thereof and shall pay as incurred the fees and disbursements of such counsel reasonably satisfactory related to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigationproceeding. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, In any such action include both the indemnifying party proceeding, CA and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party Xxxxxx shall have the right to employ separate counsel, in which case the fees and expenses of one retain their own counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified partiesat Client’s expense. No indemnified party shall consent to entry of any judgment or Client will not enter into any waiver, release or settlement with respect to any threatened or pending claim, action, proceeding or investigation or settle any litigation arising therefrom in respect of which indemnification hereunder may be sought (whether or not Indemnified Persons are a formal party thereto) without the prior written consent of CA (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, consent shall not be unreasonably withheld) withheld or delayed), unless such waiver, release or settlement includes an unconditional release of each indemnifying party.
(d) If the indemnification of CA and Xxxxxx from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result and all liability arising out of such lossesthreatened or pending claim, claimsaction, damagesproceeding, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d)litigation.
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Samples: Placement Agent Agreement (Titan Pharmaceuticals Inc)
Indemnification; Contribution. (a) The Company shall indemnify and hold harmless the FoundationHolders, its officers their officers, directors and directorsMembers, and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation Holders furnished to the Company by the Foundation Holders or its their counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the FoundationHolders. Notwithstanding the foregoing provisions of this Section 11(a13(a), the Company shall not be liable to the FoundationHolders, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 13 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the FoundationHolders, or other Person on behalf of the FoundationHolders, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely namely furnished sufficient copies thereof to the Foundation Holders in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation Holders shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the FoundationHolders, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation Holders furnished to the Company or any underwriter by the Foundation Holders or its their counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation Holders shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation Holders had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 13 (provided PROVIDED that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 13 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 13 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 13 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c13(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d13(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d13(d). Notwithstanding the provisions of this Section 11(d13(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation Holders shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation Holders were offered to the public exceeds the amount of any damages which the Foundation Holders has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 1113, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a13(a) or (bSection 13(b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d13(d).
(e) The provisions of this Section 11 13 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 13 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless the Foundation, Newbridge and its officers and officers,directors, and any agent or investment adviser thereof against all lossesshareholders, claimsemployees, damagesaffiliates, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person person who controls such underwriters Newbridge (and any of its affiliates) within the meaning of Section 15 of the Securities Act of 1933, as amended or Section 20 of the Securities Exchange Act) Act of 1934, as amended (each an “Indemnified Person”), to the same fullest extent as provided above lawful, against any and all claims, losses, damages, liabilities, and expenses (including all fees and disbursements of counsel and other expenses reasonably incurred in connection with respect the investigation of, preparation for and defense of any pending or threatened claim, action, proceeding, inquiry, investigation or litigation, to which an Indemnified Person may become subject) (collectively, “Damages”) incurred that arise out of or are related to any actual or proposed Corporate Advisory assignment or Newbridge’s engagement under this Agreement. However, this indemnification shall not include any Damages that are found in a final judgment by a court of competent jurisdiction to have resulted from the bad faith, willful misconduct or negligence of Newbridge. Promptly after receipt by Newbridge of notice of any claim or the commencement of any action for which an Indemnified Person may be entitled to indemnity, Newbridge shall promptly notify the Company of such claim or the commencement of such against the Indemnified Person that would give rise to indemnification. However, any delay or failure to notify the Company will not relieve the Company of its indemnity obligation except to the indemnification extent it is materially prejudiced by such delay or failure. The Company may participate in the defense of the Foundationclaim and shall assume the defense of the claim and shall pay as incurred the fees and disbursements of counsel for the proceeding. Notwithstanding In any proceeding where the foregoing provisions Company declines to assume the defense or the Company’s counsel is deemed to have a conflict of this Section 11(a)interest, the Indemnified Person shall have the right to retain its own counsel which shall be reasonably satisfactory to Newbridge. The Company shall pay the fees and expenses of such counsel as incurred. However, the Company shall not be liable to responsible for the Foundationfees and expenses of more than one counsel (other than counsel of record) for all Indemnified Persons.
b) The Company will not enter into any waiver, any Person who participates as an underwriter in the offering release or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 settlement for any such loss, threatened or pending claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing settle any related litigation for which such indemnified party indemnification may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party sought under this Section 11 for any legal expenses of other counsel Agreement (whether or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within Indemnified Persons are a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified formal party to the fullest extent provided in Section 11(a) litigation), unless the waiver, release or (b) hereofsettlement includes an unconditional release of each Indemnified Person from any and all liability arising out of the threatened or pending claim, as the case may beaction, without regard to the relative fault of such indemnifying parties proceeding, investigation or indemnified party or any other equitable consideration provided for in this Section 11(d)litigation.
(ec) The provisions of Newbridge shall indemnify the Company for any actions on its part related to this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by Agreement for its bad faith, willful misconduct or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannernegligence.
Appears in 1 contract
Samples: Investment Banking Engagement Agreement (SQL Technologies Corp.)
Indemnification; Contribution. (a) The Company shall indemnify and hold harmless agrees to indemnify, to the Foundationextent permitted by law, each holder of Registrable Securities, its officers and officers, directors, partners, trustees, members, managers, employees, advisors, agents and any agent or investment adviser thereof each Person that controls such holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses (expenses, including reasonable attorneys' ’ fees and expenses) incurred by such party pursuant to any actual or threatened actiondisbursements and expenses of investigation, suit, proceeding or investigation arising out of or based upon (i) resulting from any untrue or alleged untrue statement of material fact contained in any Registration Statementregistration statement, any Prospectus prospectus or preliminary Prospectus, prospectus or any amendment thereof or supplement to any of the foregoingthereto, or (ii) any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, or violation or alleged violation by the Company of the Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law, except in each case insofar as the same arise out of are caused by or are based upon, contained in any such untrue statement or omission made information furnished in reliance on and in conformity with information with respect to the Foundation furnished writing to the Company by the Foundation or its counsel such holder expressly for use thereintherein or by such holder’s failure to deliver a copy of the registration statement or prospectus or any amendments or supplements thereto after the Company has furnished such holder with a sufficient number of copies of the same. In connection with an Underwritten Offeringunderwritten offering, the Company shall indemnify the underwriters thereofsuch underwriters, their officers, officers and directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale holders of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this AgreementSecurities.
(b) In connection with any registration statement in which a holder of Registrable Securities pursuant to this Agreementis participating, the Foundation each such holder shall furnish to the Company and any underwriter in writing such information, including the name, address information and the amount of Registrable Securities held by the Foundation, affidavits as the Company or any underwriter reasonably requests for use in the Registration Statement relating to connection with any such registration statement or prospectus and, to the related Prospectus and agrees to extent permitted by law, shall indemnify and hold harmless the Company, any underwriterits directors, each such party's officers officers, employees, agents and directors Affiliates and each Person who controls each such party the Company (within the meaning of Section 15 of the Securities Act or Section 20 of and the Exchange Act), and ) against any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) resulting from any untrue or alleged untrue statement of material fact contained in any Registration Statementthe registration statement, any Prospectus prospectus or preliminary Prospectus, prospectus or any amendment thereof or supplement to any of the foregoing, thereto or (ii) any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made contained in reliance on any writing furnished by such holder for use in such registration statement, prospectus or preliminary prospectus or any amendment or supplement thereto; provided that the obligation to indemnify shall be individual, not joint and in conformity with information with respect several, for each holder and shall be limited to the Foundation furnished net amount of proceeds received by such holder from the sale of Registrable Securities pursuant to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statementregistration statement.
(c) Any Person entitled to indemnification hereunder agrees to shall (i) give prompt written notice to the indemnifying party after of any claim with respect to which it seeks indemnification (provided that the receipt by failure to give prompt notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment (x) a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim or (y) such indemnified party of any written notice of the commencement of any action, suit, proceeding has one or investigation or threat thereof made in writing for which more defenses to such indemnified party may claim indemnification or contribution pursuant that are not available to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party, permit such indemnifying party pursuant to this Section 11 except assume the defense of such claim with counsel reasonably satisfactory to the extent the indemnifying party shall have been actually prejudiced as a result of indemnified party. If such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereofdefense is assumed, the indemnifying party shall be entitled to participate therein and, to not settle such claim unless the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent is released and discharged of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to any liability. Whether or not such indemnified party of its election so to assume the defense thereofis assumed, the indemnifying party shall not be liable subject to such any liability for any settlement made by the indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by without its consent (but such indemnified party, in connection with the defense thereof other than reasonable costs of investigationconsent shall not be unreasonably withheld). Notwithstanding the foregoing, if (i) the An indemnifying party shall who is not have employed counsel reasonably satisfactory to such indemnified party to take charge of entitled to, or elects not to, assume the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party claim shall not have demonstrated be obligated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case pay the fees and expenses of more than one counsel or firm for all parties indemnified by such indemnifying party with respect to such claim, except to the extent that in the reasonable judgment of counsel (plus one local or regulatory counsel or firm any indemnified party a conflict of counsel) selected by a majority in interest may exist between such indemnified party and any other of the such indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent with respect to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partysuch claim.
(d) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and shall survive the transfer of securities.
(e) If the indemnification required by this Section 6 from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party parties in connection with the actions which resulted in such losses, claims, damages, liabilities and or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, violation has been made committed by, or relates to information supplied by, such indemnifying party or indemnified partyparties, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionviolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c6(a) hereofand Section 6(b), any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. .
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d6(e) were determined solely by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d6(e)(i). Notwithstanding ; provided, however, that with respect to any pro rata allocation, the provisions holders of this Section 11(d), no underwriter Registrable Securities included in any such registration shall be required deemed to contribute any amount in excess have only received the net proceeds from such holders’ sales of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which in such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionregistration. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless the FoundationNational and its officers, its officers and directors, and any agent or investment adviser thereof against all lossesshareholders, claimsemployees, damagesaffiliates, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person person who controls such underwriters National (and any of its affiliates) within the meaning of Section 15 of the Securities Act of 1933, as amended or Section 20 of the Securities Exchange Act) Act of 1934, as amended (each an “Indemnified Person”), to the same fullest extent lawful, against any and all losses, damages, liabilities, and expenses (including all fees and disbursements of counsel and other expenses) (“Damages”) reasonably incurred in connection with the investigation of, preparation for and defense of any pending or threatened claim, action, proceeding, inquiry, investigation or litigation, to which an Indemnified Person may become subject (collectively, “Claims”) that arises out of or is related to National’s engagement under this Agreement. However, this indemnification shall not include any Damages that are found in a final judgment by a court of competent jurisdiction to have resulted from the bad faith, willful misconduct, breach of applicable law or regulation or gross negligence of any Indemnified Person.
(b) If the indemnity above is unavailable or insufficient to hold harmless an Indemnified Person, then the Company shall contribute to amounts paid or payable by an Indemnified Person for Damages in such proportion as provided above with respect appropriately reflects the relative benefits received by the Company on the one hand and National on the other. If applicable law does not permit allocation solely on the basis of benefits, then such contribution shall be made in such proportion as appropriately reflects both the relative benefits and relative fault of the parties and other relevant equitable considerations. However, in no event shall National’s aggregate contributions for Damages exceed the amount of fees actually received by National under this Agreement except to the indemnification extent that such Damages were incurred due to the bad faith, willful misconduct, breach of applicable law or regulation or gross negligence of National. The relative benefits to the Company and National of this Agreement shall be deemed to be in the same proportion that the total value paid or received or contemplated to be paid or received by the Company or its security holders resulting from this Agreement bears to the fees paid to National under this Agreement.
(c) Promptly after receipt by National of notice of any claim or the commencement of any action for which an Indemnified Person may be entitled to indemnity, National shall promptly notify the Company of such claim or the commencement of such against the Indemnified Person that would give rise to indemnification. However, any delay or failure to notify the Company will not relieve the Company of its indemnity obligation except to the extent it is materially prejudiced by such delay or failure. The Company may participate in the defense of the Foundationclaim and shall assume the defense of the claim and shall pay as incurred the fees and disbursements of counsel for the proceeding. Notwithstanding In any proceeding where the foregoing provisions Company declines to assume the defense or the Company’s counsel is deemed to have a conflict of this Section 11(a)interest, the Indemnified Person shall have the right to retain its own counsel which shall be reasonably satisfactory to National. The Company shall pay the fees and expenses of such counsel as incurred. However, the Company shall not be liable to responsible for the Foundation, any Person who participates as an underwriter in the offering or sale fees and expenses of Registrable Securities or any more than one counsel (other Person, if any, who controls any such underwriter (within the meaning than counsel of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 record) for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreementall Indemnified Persons.
(bd) In connection with The Company will not enter into any registration of Registrable Securities pursuant to this Agreementwaiver, the Foundation shall furnish to the Company and release or settlement for any underwriter in writing such informationthreatened or pending claim, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing settle any related litigation for which such indemnified party indemnification may claim indemnification or contribution pursuant to be sought under this Section 11 (provided that failure to give such notification shall not affect Agreement by an Indemnified Party , without the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the written consent of the indemnified partyIndemnified Party unless the waiver, be counsel to the indemnifying party), release or settlement includes an unconditional release of each Indemnified Person from any and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge all liability arising out of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) threatened or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defensepending claim, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suitproceeding, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d)litigation.
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Samples: Financial Advisory Engagement Agreement (Inmune Bio, Inc.)
Indemnification; Contribution. (ai) The Company shall Counterparty agrees to indemnify and hold harmless the FoundationCS, its officers and affiliates, their respective directors, officers, employees, agents, advisors, brokers and representatives and each person who controls CS or its affiliates within the meaning of either the Securities Act or the Exchange Act against, and Counterparty agrees that no indemnified party shall have any agent liability to Counterparty or investment adviser thereof against all any of its affiliates, officers, directors, or employees for, any losses, claims, damages, liabilities and expenses (whether direct or indirect, in contract, tort or otherwise) or expenses, joint or several, to which any indemnified party may become subject under the Securities Act, the Exchange Act (including reasonable attorneys' fees and expenses) incurred by such party pursuant without limitation, under Section 16 of the Exchange Act relating to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement Counterparty’s failure to any of the foregoing, or (ii) any omission or alleged omission to state therein promptly provide CS with a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation Repurchase Notice in accordance with the provisions contained in this Agreement.
(bConfirmation) In connection with any registration of Registrable Securities pursuant to this Agreementor other federal or state law or regulation, the Foundation shall furnish to the Company and any underwriter in writing at common law or otherwise, insofar as such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and or expenses (including reasonable attorneys' fees and expensesor actions, claims, investigations or proceedings in respect thereof, whether commenced or threatened) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising (i) arise out of or based relate to (A) actions or failures to act by Counterparty or (B) actions or failures to act by an indemnified party with the consent, upon (i) any untrue the direction of or alleged untrue statement with the knowledge of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, Counterparty or (ii) otherwise arise out of or relate to the Transaction or any omission or alleged omission related transactions, provided that this clause (ii) shall not apply to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleadingextent, but only to the extent extent, that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then of an indemnified party have resulted primarily from the indemnifying party, in lieu gross negligence or willful misconduct of indemnifying such indemnified party, shall contribute . Counterparty agrees to the amount paid or payable by reimburse promptly each such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, for any legal and or other fees and expenses reasonably incurred by such indemnified party them in connection with investigating or defending any investigation such loss, claim, damages, liability, expense or proceedingaction. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall This indemnity agreement will be in addition to any liability which any party Counterparty may have to any other party otherwise have, and shall survive any termination the completion of this Agreement. The indemnification provided the Transaction contemplated by this Section 11 Confirmation and shall remain in full force and effect irrespective inure to the benefit of any investigation made by permitted assignee or on behalf designee of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerCS.
Appears in 1 contract
Samples: Issuer Share Option Transaction (Atp Oil & Gas Corp)
Indemnification; Contribution. (a) The Company shall indemnify and hold harmless the Foundation, its officers and directors, and In connection with any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out registration of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, Registrable Shares or any amendment distribution, offer or supplement to sale of any of the foregoingRegistrable Shares, or (ii) including any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary ProspectusUnderwritten Offering, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company any Registration Statement or by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offeringmeans of any Offering Documents, the Company shall indemnify the underwriters thereofagrees to indemnify, their officersdefend and hold harmless, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same fullest extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a)permitted by Applicable Law, the Company shall not be liable to the Foundation, each Selling Shareholder Indemnified Person from and against any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreementall Selling Shareholder Claims.
(b) In connection with any registration of Registrable Securities pursuant to this AgreementShares or any distribution, the Foundation shall furnish to the Company and offer or sale of any underwriter in writing such informationRegistrable Shares, including the nameany Underwritten Offering, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on any Registration Statement or by means of any Offering Documents, each of the Selling Shareholders, severally but not jointly, agrees to indemnify, defend and hold harmless each and every Company Indemnified Person from and against any and all Company Claims against such Selling Shareholder; provided, however, that in conformity with information no event shall the liability of any Selling Shareholder for such indemnification exceed the dollar amount by which the proceeds (net of underwriting discounts and commissions and other selling expenses) received by such Selling Shareholder from the sale of the Registrable Shares giving rise to such indemnification exceed the amount of any damages which such Selling Shareholder has otherwise actually paid in satisfaction of any judgment with respect to or the Foundation furnished settlement of any claim against such Selling Shareholder by one or more third parties not affiliated with such Selling Shareholder in connection with the subject matter giving rise to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each Claim against such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementSelling Shareholder.
(c) Any Person entitled In case any claim, action or proceeding (including any governmental investigation) is instituted involving any Indemnified Party, such Indemnified Party will promptly notify the Indemnifying Party against whom such indemnity may be sought in writing, and the Indemnifying Party, upon request of the Indemnified Party, will retain counsel (which may also be counsel to the Indemnifying Party) as may be reasonably satisfactory to the Indemnified Party to represent the Indemnified Party in connection with any claim, action or legal proceeding that could result in a claim for indemnification hereunder agrees by the Indemnified Party and will pay the fees and disbursements of such counsel related to such claim, action or proceeding; provided, however, that the failure or delay to give prompt written such notice to shall not relieve the indemnifying party after the receipt by such indemnified party Indemnifying Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution its obligations pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 Agreement except to the extent such Indemnifying Party has been prejudiced in any material respect by such failure or delay. In any such claim, action or proceeding, any Indemnified Party will have the indemnifying party shall have been actually prejudiced as a result right to retain its own counsel, but the fees and expenses of such failure). In case any counsel will be at the expense of such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if Indemnified Party unless: (i) the indemnifying party shall not Indemnifying Party and the Indemnified Party have employed counsel reasonably satisfactory mutually agreed to such indemnified party to take charge of the defense retention of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, counsel; or (ii) the named parties to any such claim, action or proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that representation of both parties by the same counsel would be inappropriate due to actual or potential defendants inconflicting interests between them. It is understood that the Indemnifying Party will not, in connection with any claim, action or targets ofproceeding or related claims, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from actions or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by proceedings in the same counseljurisdiction, could result in a conflict of interest be liable for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the reasonable fees and expenses of more than one counsel or separate firm of counsel attorneys (plus one in addition to any required local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party at any time for all such Indemnified Parties and the that all such reasonable fees and expenses will be reimbursed as they are incurred. In the case of all other counsel retained the retention of any such separate firm for the Indemnified Parties, such firm of attorneys will be designated in writing by the indemnified parties shall Indemnified Parties. The Indemnifying Party will not be paid by the indemnified partiesliable for any settlement of any claim, action or proceeding effected without its prior, express written consent, which consent may not be unreasonably withheld or delayed. No indemnified party shall Indemnifying Party will, without the prior written consent to entry of the Indemnified Party: (i) confess any judgment or enter into permit any default judgment to be taken; or (ii) effect any settlement without the consent (which consentof any pending or threatened claim, in the case of an action, suit, claim action or proceeding exclusively seeking monetary reliefin respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, shall unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such claim, action or proceeding and unless such settlement does not be unreasonably withheld) include a statement to, or an admission of, fault, culpability or a failure to act, by or on behalf of each indemnifying partythe Indemnified Party.
(d) If the an indemnification from the indemnifying party provided for in this Section 11 from the Indemnifying Party is unavailable to an indemnified party Indemnified Party hereunder in respect of any Claims (other than any losses, claims, damages, liabilities or liabilities, judgments, costs and expenses referred for which an Indemnified Party is expressly not entitled to thereinindemnification pursuant to this Section 11), then the indemnifying partyIndemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall will contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, liabilities and expenses Claims in such proportion as is appropriate to reflect the relative fault of the indemnifying party Company, on the one hand, and indemnified the applicable Selling Shareholders, on the other, in connection with the statements or omissions or, in the case of the Selling Shareholders, inaccurate certifications that resulted in such Claims; provided, however, that in no event shall a Selling Shareholder be required to contribute an aggregate amount in excess of the lesser of: (A) the amount that such Selling Shareholder would have been obligated to pay under Section 11(b) if such indemnity was available to the Indemnified Party; and (B) the dollar amount by which proceeds (net of underwriting discounts and commissions and other selling expenses) received by such Selling Shareholder exceeds the amount of any damages which such Selling Shareholder has otherwise actually paid in satisfaction of any judgment with respect to or the settlement of any claim by any unaffiliated third party in connection with the actions subject matter giving rise to the Claims for which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerationscontribution is sought. The relative fault of such indemnifying party the Company and indemnified party shall any Selling Shareholder will be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made taken by, or relates to information supplied by, the Company or such indemnifying party or indemnified partySelling Shareholder, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses Claims referred to above shall will be deemed to include, subject to the limitations set forth in Section 11(c) hereof), any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. proceeding initiated in connection with such Claims.
(e) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of “fraudulent misrepresentation misrepresentation” (within the meaning of Section 11(f) of the Securities Act) shall will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. .
(f) If indemnification is available under this Section 11, the indemnifying parties shall Indemnifying Party will indemnify each indemnified party Indemnified Party to the fullest full extent provided in Section Sections 11(a) or (band 11(b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties said Indemnifying Party or indemnified party Indemnified Party or any other equitable consideration provided for in this Section 11(d) or 11(e).
(eg) Notwithstanding anything to the contrary in this Agreement, each of the Indemnified Parties has relied on this Section 11, is an express third party beneficiary of this Section 11 and is entitled to enforce the obligations of the applicable Indemnifying Parties under this Section 11 directly against such Indemnifying Parties to the full extent thereof.
(h) In no event will any Indemnifying Party be liable for, or any Indemnified Party have any right to, any indemnification hereunder with respect to any consequential, loss of profits, special or other similar damages suffered by an Indemnified Party.
(i) The provisions of this Section 11 shall be in addition to any liability remedies which any party may have to any other party party, whether at law or in equity, and shall survive the Expiration Date or any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerAgreement occurring prior to the Expiration Date.
Appears in 1 contract
Samples: Registration Rights Agreement (Wal Mart Stores Inc)
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless the FoundationNewbridge and its officers, its officers and directors, and any agent or investment adviser thereof against all lossesshareholders, claimsemployees, damagesaffiliates, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person person who controls such underwriters Newbridge (and any of its affiliates) within the meaning of Section 15 of the Securities Act of 1933, as amended or Section 20 of the Securities Exchange Act) Act of 1934, as amended (each an “Indemnified Person”), to the same fullest extent as provided above lawful, against any and all claims, losses, damages, liabilities, and expenses (including all fees and disbursements of counsel and other expenses reasonably incurred in connection with respect the investigation of, preparation for and defense of any pending or threatened claim, action, proceeding, inquiry, investigation or litigation, to which an Indemnified Person may become subject) (collectively, “Damages”) incurred that arise out of or are related to any actual or proposed Transaction or Newbridge ‘s engagement under this Agreement. However, this indemnification shall not include any Damages that are found in a final judgment by a court of competent jurisdiction to have resulted from the indemnification bad faith, willful misconduct or gross negligence of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), Newbridge.
b) Newbridge agrees to indemnify and hold harmless the Company shall not be liable to the Foundationand its officers, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Persondirectors, if anyshareholders, employees, affiliates, agents and each person who controls the Company (and any such underwriter (of its affiliates) within the meaning of Section 15 of the Securities Act of 1933, as amended or Section 20 of the Securities Exchange ActAct of 1934, as amended (each also considered an “Indemnified Person”), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person fullest extent lawful, against any and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreementall claims, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities liabilities, and expenses (including reasonable attorneys' all fees and expensesdisbursements of counsel and other expenses reasonably incurred in connection with the investigation of, preparation for and defense of any pending or threatened claim, action, proceeding, inquiry, investigation or litigation, to which an Indemnified Person may become subject) (collectively, “Damages”) incurred by each such party pursuant that arise out of or are related to any actual or threatened actionproposed Corporate Advisory assignment or Newbridge ‘s engagement under this Agreement. However, suitthis indemnification shall not include any Damages that are found in a final judgment by a court of competent jurisdiction to have resulted from the bad faith, proceeding willful misconduct or investigation arising out gross negligence of Newbridge.
c) If the indemnity above is unavailable or based upon (i) any untrue insufficient to hold harmless an Indemnified Person, then appropriate party shall contribute to amounts paid or alleged untrue statement payable by an Indemnified Person for Damages in such proportion as appropriately reflects the relative benefits received by the Company on the one hand and Newbridge on the other. If applicable law does not permit allocation solely on the Exhibit 10.7 Investment Banking Engagement Agreement basis of material fact contained benefits, then such contribution shall be made in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any such proportion as appropriately reflects both the relative benefits and relative fault of the foregoing, or (iiparties and other relevant equitable considerations.
d) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter Promptly after receipt by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of any claim or the commencement of any action for which an Indemnified Person may be entitled to indemnity, the noticed party shall promptly notify other party of such claim or the commencement of such against the Indemnified Person that would give rise to indemnification. However, any delay or failure to notify the other party will not relieve the other party of its indemnity obligation except to the extent it is materially prejudiced by such delay or failure. The noticed party may participate in the defense of the claim and shall assume the defense of the claim and shall pay as incurred the fees and disbursements of counsel for the proceeding. In any proceeding where the noticed party declines to assume the defense or the noticed party’s counsel is deemed to have a conflict of interest, the Indemnified Person shall have the right to retain its own counsel which shall be reasonably satisfactory to the noticed party. The noticed party shall pay the fees and expenses of such counsel as incurred. However, the noticed party shall not be responsible for the fees and expenses of more than one counsel (other than counsel of record) for all Indemnified Persons.
e) The noticed party will not enter into any waiver, release or settlement for any threatened or pending claim, action, suit, proceeding or investigation or threat thereof made in writing settle any related litigation for which such indemnified party indemnification may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party sought under this Section 11 for any legal expenses of other counsel Agreement (whether or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within Indemnified Persons are a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified formal party to the fullest extent provided in Section 11(a) litigation), unless the waiver, release or (b) hereofsettlement includes an unconditional release of each Indemnified Person from any and all liability arising out of the threatened or pending claim, as the case may beaction, without regard to the relative fault of such indemnifying parties proceeding, investigation or indemnified party or any other equitable consideration provided for in this Section 11(d)litigation.
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Samples: Investment Banking Engagement Agreement (CoJax Oil & Gas Corp)
Indemnification; Contribution. (a) The Company shall Agilent and World Trade jointly and severally agree to indemnify and hold harmless the FoundationXxxxxxx Xxxxx and its affiliates, its officers and directors, officers, employees, agents and controlling persons (Xxxxxxx Xxxxx and each such other person being an “Indemnified Party”) from and against any agent or investment adviser thereof against and all losses, claims, damagesdamages and liabilities, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by joint or several, to which such party pursuant Indemnified Party becomes subject under any applicable law, or otherwise related to any actual or threatened action, suit, proceeding or investigation arising out of or based upon in connection with (ia) any transaction contemplated by this Agreement, and (b) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus information (whether oral or preliminary Prospectus, written) or documents furnished or made available by World Trade or Agilent or any amendment of their affiliates in connection with any transaction contemplated pursuant to this Agreement or supplement to any of the foregoing, or (ii) any omission or the alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein (in the case of a Prospectus or a preliminary Prospectusnot misleading, in light of the circumstances then existing) not misleadingunder which they were made; provided, except however, that neither Agilent nor World Trade shall be liable, in each the case insofar as of this clause (b), to the same extent that any such losses, claims, damages or liabilities arise out of or are based upon, any on such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information relating to Xxxxxxx Xxxxx (or the preliminary Prospectus if the Foundation, relevant affiliate thereof) furnished to Agilent or other Person on behalf World Trade by Xxxxxxx Xxxxx expressly for use therein. In no event shall Agilent or World Trade be liable for fees and expenses of the Foundation, failed more than one counsel (in addition to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected any local counsel) separate from their own counsel for all Indemnified Parties in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company one action or any underwriter reasonably requests for use separate but similar or related actions in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act), circumstances. Agilent and World Trade jointly and severally agree to promptly reimburse any agent or investment adviser thereof against Indemnified Party for all losses, claims, damages, liabilities and expenses (including reasonable attorneys' counsel fees and expenses) as they are incurred by each such party pursuant to in connection with the investigation of, preparation for or defense of any actual pending or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, claim or any amendment action or supplement to proceeding arising from any of the foregoing, or (ii) any omission or alleged omission matters referred to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case preceding sentence, whether or not such Indemnified Party is a party and whether or not such claim, action or proceeding is initiated or brought by or on behalf of World Trade or Agilent or the relevant issuer or whether or not resulting in any liability. Neither Agilent nor World Trade shall be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there shall be a Prospectus final judgment for the plaintiff, Agilent and World Trade jointly or a preliminary Prospectusseverally agree to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment. Agilent and World Trade further jointly and severally agree not to assert any claim against any Indemnified Party for consequential, punitive or exemplary damages on any theory of liability in light connection with the transactions described in or contemplated by this Agreement. Neither Agilent nor World Trade shall be liable to an Indemnified Party under clause (a) of the circumstances then existing) not misleading, but only foregoing indemnification provision to the extent that any such untrue statement loss, claim, damage, liability or omission expense is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected finally determined by a majority in interest court of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified partiescompetent jurisdiction to have resulted primarily from such Indemnified Party’s bad faith, gross negligence or willful misconduct. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party of an Indemnified Party provided for in this Section 11 Agreement is unavailable for any reason held unenforceable, Agilent and World Trade jointly and severally agree to an indemnified party hereunder in respect of any contribute to the losses, claims, damages, damages or liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying for which such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses indemnification is held unenforceable (a) in such proportion as is appropriate to reflect the relative benefits to World Trade and Agilent, on the one hand, and Xxxxxxx Xxxxx, on the other hand, of the relevant transaction contemplated pursuant to this Agreement, or (b) (but only if) the allocation provided for in clause (a) is for any reason prohibited by law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (a) but also World Trade and Agilent’s relative fault, on the one hand, and the relative fault of Xxxxxxx Xxxxx, on the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expensesother hand, as well as any other relevant equitable considerations. The Agilent and World Trade jointly and severally agree that for the purposes of this paragraph the relative fault of such indemnifying party benefits to World Trade and indemnified party shall be determined by reference toAgilent, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified partyon the one hand, and to Xxxxxxx Xxxxx, on the parties' relative intentother hand, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject be in the same proportion that the total value received or contemplated to the limitations set forth be received by World Trade and/or Agilent in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution transactions contemplated pursuant to this Section 11(d) were determined Agreement bears to the fees paid or to be paid to Xxxxxxx Xxxxx with respect to such transaction; provided, however, that, to the extent permitted by pro rata allocation or by any other method of allocation which does not take account of applicable law, in no event shall the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), no underwriter shall Indemnified Parties be required to contribute any in respect of a specific transaction an aggregate amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed fees actually paid in such transaction to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionXxxxxxx Xxxxx. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to The foregoing contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 agreement shall be in addition to any liability which rights that any party Indemnified Party may have at common law or otherwise. No investigation or failure to investigate by any Indemnified Party shall impair the foregoing indemnification and contribution agreement or any other party right an Indemnified Party may have. Agilent and shall survive World Trade jointly and severally agree that, without Xxxxxxx Xxxxx’x prior written consent, neither World Trade nor Agilent nor any termination of their affiliates or subsidiaries will settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding in respect of which indemnification has been or could be sought under the indemnification provisions of this Agreement. The indemnification provided by this Section 11 shall remain Agreement (whether or not Xxxxxxx Xxxxx or any other Indemnified Party is an actual or potential party to such claim, action or proceeding), unless such settlement, compromise or consent (a) includes an unconditional written release, in full force form and effect irrespective substance satisfactory to Xxxxxxx Xxxxx and each Indemnified Party, from all liability arising out of such claim, action or proceeding and (b) does not include any investigation made statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any Indemnified Party. In the event that an indemnified partyIndemnified Party is requested or required to appear as a witness in any action brought by or on behalf of or against Agilent or any of its subsidiaries or affiliates in which such Indemnified Party is not named as a defendant, so long World Trade and Agilent agree to reimburse such Indemnified Party for all reasonable expenses incurred by it in connection with such Indemnified Party’s appearing and preparing to appear as such indemnified party is not guilty a witness, including, without limitation, the fees and expenses of acting in a fraudulent, reckless or grossly negligent mannerits legal counsel.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall Indemnification by Acquiror. Acquiror agrees to indemnify --------------------------- and hold harmless the Foundationeach Holder included in any registration of Registrable Securities pursuant to this Agreement, its officers and directorsdirectors and each Person who controls such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, foregoing or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation such Holder furnished in writing to the Company Acquiror by the Foundation such Holder or its counsel expressly for use therein. In connection with an Underwritten Offeringunderwritten offering, the Company shall Acquiror will indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the FoundationHolders. Notwithstanding the foregoing provisions of this Section 11(a10(a), the Company shall Acquiror will not be liable to the Foundationany Holder, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such Holder or underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under the indemnity agreement in this Section 11 10(a) for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, such Holder's or other Person on behalf of the Foundation, failed Person's failure to send or deliver a copy of a final Prospectus to the Person asserting the claim an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of the Registrable Securities to such Person and if such statement or omission was corrected in such final Prospectus and the Company had Acquiror has previously and timely furnished sufficient copies thereof to the Foundation such Holder in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Samples: Merger Agreement (Toys R Us Inc)
Indemnification; Contribution. (a) Indemnification by the Parent. The Company Parent shall indemnify and hold harmless indemnify, to the Foundation----------------------------- fullest extent permitted by law, each Investor, its officers officers, directors and directorsagents, if any, and any agent or investment adviser thereof each Person, if any, who controls such Investor within the meaning of Section 15 of the Securities Act, and each underwriter, its officers, directors and agents, if any, and each Person, if any, who controls such underwriter within the meaning of Section 15 of the Securities Act, against all losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses (including reasonable attorneys' fees and expenses) incurred under the Securities Act or common law or otherwise), joint or several, resulting from any violation by such party pursuant to any actual the Parent of the provisions of the Securities Act or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus registration statement or preliminary Prospectus, prospectus (and as amended or supplemented if amended or supplemented) or any amendment preliminary prospectus or supplement to any of the foregoing, or (ii) caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectusany prospectus, in light of the circumstances then existingunder which they were made) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and (or proceedings in respect thereof) or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined are caused by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact contained in or by any omission or alleged omission from information concerning such Investor furnished in writing to state a material factthe Parent by such Investor expressly for use therein. If the offering pursuant to any registration statement provided for under this Section 1 is made through underwriters, has been made by, no action or relates failure to information supplied by, act on the part of such indemnifying party underwriters (whether or indemnified party, and not such underwriter is an Affiliate of an Investor) shall affect the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result obligations of the losses, claims, damages, liabilities and expenses referred Parent to above shall be deemed to include, subject indemnify each Investor or any other Person pursuant to the limitations preceding sentence. If the Parent shall indemnify in a separate Underwriting Agreement any of the parties set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d1.5(a). Notwithstanding , then the provisions of such Underwriting Agreement shall control and this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation 1.5(a) shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, apply as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have such parties with respect to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerthat Public Offering.
Appears in 1 contract
Samples: Registration Rights Agreement (Coliseum Capital Management, LLC)
Indemnification; Contribution. (a) The Company shall will indemnify and hold harmless the Foundationeach Holder, its officers and each of such Holders’ officers, directors, partners, agents, employees and any agent representatives, each underwriter, and each person controlling such Holder or investment adviser thereof underwriter within the meaning of Section 15 of the Securities Act, with respect to each registration, qualification or compliance effected pursuant to this Agreement, against all lossesexpenses, claims, damageslosses, damages and liabilities and expenses (including reasonable attorneys' fees and expensesor actions, proceedings or settlements in respect thereof) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) on any untrue statement (or alleged untrue statement statement) of a material fact contained in any Registration Statementprospectus, offering circular or any Prospectus other document (including any related registration statement, notification or preliminary Prospectusthe like) incident to any such registration, qualification or compliance, or any amendment or supplement to any of the foregoing, or (ii) based on any omission (or alleged omission omission) to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except and will reimburse each such indemnified person for any legal and any other expenses reasonably incurred in each connection with investigating and defending or settling any such claim, loss, damage, liability or action; provided, however, that the Company will not be liable in any such case insofar as to the same arise extent that any such claim, loss, damage, liability or expense arises out of or are is based upon, on any such untrue statement or omission made in reliance on and in conformity with based upon written information with respect to the Foundation furnished to the Company by the Foundation such Holder or its counsel expressly such underwriter and stated to be specifically for use therein. In connection with an Underwritten OfferingIt is agreed that the indemnity agreement contained in this Section 6(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company (which consent has not been unreasonably withheld or delayed).
(b) Each Holder of Registrable Securities included in any registration effected pursuant to this Agreement shall indemnify the underwriters thereofCompany, their each of its directors, officers, directors agents, employees and agents representatives, each underwriter, and each Person person who controls the Company or such underwriters (underwriter within the meaning of Section 15 of the Securities Act or Section 20 Act, each other participating Holder and each of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a)their officers, the Company shall not be liable to the Foundationdirectors and partners, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Personand each person controlling such holders, if anyagainst all claims, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)losses, under this Section 11 for any such loss, claim, damage, liability damages and liabilities (or action or proceeding actions in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) on any untrue statement (or alleged untrue statement statement) of a material fact contained in any Registration Statementsuch registration statement, any Prospectus prospectus, offering circular or preliminary Prospectusother document, or any amendment or supplement to any of the foregoing, or omission (ii) any omission or alleged omission omission) to state therein a material fact required to be stated therein or necessary to make the statements therein (not misleading, and will reimburse such indemnified persons for any legal or any other expenses reasonably incurred in the case of a Prospectus connection with investigating or a preliminary Prospectusdefending any such claim, loss, damage, liability or action, in light of each case to the circumstances then existing) not misleadingextent, but only to the extent extent, that any such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document in reliance on upon and in strict conformity with written information with respect to the Foundation furnished to the Company by or on behalf of such Holder; provided, however, that (x) no Holder shall be liable hereunder for any underwriter amounts in excess of the net proceeds received by such Holder pursuant to such registration, and (y) the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions obligations of this Section 13(b), the Foundation such Holder hereunder shall not be liable apply to the Company, any underwriter, each such parties' officers or directors, any other Person who controls amounts paid in settlement of any such party claims, losses, damages or liabilities (within or actions in respect thereof) if such settlement is effected without the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion consent of such untrue statement Holder (which consent has not been unreasonably withheld or omission in the Registration Statementdelayed).
(c) Any Person Each party entitled to indemnification hereunder agrees to under this Section 6 (the “Indemnified Party”) shall give prompt written notice to the indemnifying party required to provide indemnification (the “Indemnifying Party”) promptly after the receipt by such indemnified party Indemnified Party has actual knowledge of any written notice of claim as to which indemnity may be sought, and shall permit the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, Indemnifying Party to assume the defense thereof, with of any such claim or any litigation resulting therefrom through counsel reasonably satisfactory to such indemnified party approved by the Indemnified Party (who whose approval shall not, except with the consent of the indemnified party, not unreasonably be counsel to the indemnifying partywithheld), and after notice from the indemnifying party Indemnified Party may participate in such defense but the fees and disbursements of counsel to an Indemnified Party so choosing to participate shall be at the expense of such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if unless (i) the indemnifying party Indemnifying Party shall not have employed failed to retain counsel reasonably satisfactory to such indemnified party to take charge of for the defense of such action within a reasonable time after notice of commencement of such action (so long Indemnified Party as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defenseaforesaid, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party Indemnified Party shall have reasonably concluded that there may be legal reasonable defenses available to it which are different from or additional to those available to the indemnifying party which, if Indemnifying Party or that the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution interests of the defenses available to such indemnified party, then such indemnified party shall have Indemnified Party conflict with the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest interests of the indemnified parties Indemnifying Party; provided, however, that the failure of any Indemnified Party to give notice as provided herein shall be borne by not relieve the indemnifying party and Indemnifying Party of its obligations under this Section 6 to the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified partiesextent such failure is not prejudicial. No indemnified party shall Indemnifying Party in the defense of any such claim or litigation shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement without the consent (which consent, does not include an unconditional release of such Indemnified Party from all liability in the case of an action, suit, respect to such claim or proceeding exclusively seeking monetary relief, litigation. Each Indemnified Party shall not furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be unreasonably withheld) reasonably required in connection with defense of each indemnifying partysuch claim and litigation resulting therefrom.
(d) If the indemnification from the indemnifying party provided for in this Section 11 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in Indemnified Party with respect of to any lossesloss, claimsliability, damagesclaim, liabilities damage or expenses expense referred to therein, then the indemnifying partyIndemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party hereunder, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossesloss, claimsliability, damagesclaim, liabilities and expenses damage or expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnifying Party on the one hand and indemnified party of the Indemnified Party on the other in connection with the actions statements or omissions which resulted in such lossesloss, claimsliability, damagesclaim, liabilities and expenses, damage or expense as well as any other relevant equitable considerations; provided, however, that in any case, no Indemnifying Party shall be required to contribute an amount in excess of the net proceeds received by it from all Registrable Securities sold in the transactions related to such statements or omissions. The relative fault of such indemnifying party the Indemnifying Party and indemnified party of the Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or omission or alleged the omission to state a material fact, has been made by, or fact relates to information supplied by, such indemnifying party by the Indemnifying Party or indemnified party, by the Indemnified Party and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The Notwithstanding the foregoing, to the extent that the provisions of this Section 11 on indemnification and contribution contained in an underwriting agreement entered into in connection with an underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannercontrol.
Appears in 1 contract
Indemnification; Contribution. In each and every circumstance in which the provisions of section 6(e) are inapplicable, the following provisions of this Section shall apply:
(a) The Company shall shall, to the fullest extent permitted by law, and in addition to any such rights which any Indemnified Investor (as defined below) may have pursuant to statute, the Certificate of Incorporation, or the By-laws of the Company, or otherwise, indemnify and hold harmless the Foundation, each New Investor (including its officers and respective directors, officers, partners, employees and any agent or investment adviser thereof against all lossesagents, claimseach an "INDEMNIFIED INVESTOR") and each person (a "Controlling Person" and collectively with Indemnified Investors, damages, liabilities and expenses (including reasonable attorneys' fees and expensesthe "Indemnified Parties") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to who controls any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (them within the meaning of Section 15 of the Securities Act Act, or Section 20 of the Exchange Act) , from and against any and all losses, claims, damages, expenses and liabilities, joint or several (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted), to which they, or any of them, may become subject by reason of their representation on the Board of Directors of the Company by the New Investors Designee; provided, however, that the Company will not be obligated to provide indemnification to the same extent as provided above with respect New Investors hereunder to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any extent that such loss, claim, damage, expense or liability (which gives rise to claim for indemnification hereunder arises from the gross negligence or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf willful neglect of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this AgreementNew Investors Designee.
(b) In connection with If the indemnification provided for in Section 11(a) above for any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party reason (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information other than with respect to a claim for indemnification arising from the Foundation furnished to the Company act or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 omission of the Securities Act or Section 20 New Investor Designee) is held by a court of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were competent jurisdiction to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder Indemnified Investor in respect of any losses, claims, damages, expenses or liabilities or expenses referred to therein, then the indemnifying partyCompany, in lieu of indemnifying such indemnified partyIndemnified Investor thereunder, shall contribute to the amount paid or payable by such indemnified party Indemnified Investor as a result of such losses, claims, damages, expenses or liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party Company and indemnified party the New Investors in connection with the actions action or inaction which resulted in such losses, claims, damages, liabilities and expensesexpenses or liabilities, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, Company and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto New Investors agree that it would not be just and equitable if contribution pursuant to this Section 11(d11(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it immediately preceding paragraph.
(c) The indemnification and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall will remain in full force and effect irrespective regardless of any investigation made by or on behalf of an the Indemnified Investors or any officer, director, employee, agent or Controlling Person of the Indemnified Investors.
(d) Any Indemnified Investor that proposes to assert the right to be indemnified partyunder this Section 11 will, promptly after receipt of notice of commencement of any claim or action against such party in respect of which a claim is to be made against the Company under this Section 11, notify the Company of the commencement of such action, enclosing a copy of all papers served, but the omission so long to notify the Company will not relieve the Company from any liability that the Company may have to any Indemnified Investor under the foregoing provisions of this Section 11 unless, and only to the extent that, such omission results in the forfeiture of substantive rights or defenses by the Company. The Indemnified Investor will have the right to retain its own counsel in any such action and all fees, disbursements and other charges incurred in the investigation, defense and/or settlement of such action shall be advanced and reimbursed by the Company promptly as they are incurred; provided, however, that the Indemnified Investor shall agree to repay any expenses so advanced hereunder if it is ultimately determined by a court of competent jurisdiction that the Indemnified Investor to whom such indemnified party expenses are advanced is not guilty entitled to be indemnified as a matter of acting in a fraudulent, reckless law. The Company shall not settle any action or grossly negligent mannerclaim for which indemnification is sought under this Section 11 without the prior written consent of the Indemnified Investor.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall Agilent and World Trade jointly and severally agree to indemnify and hold harmless the FoundationXxxxxxx Xxxxx and its affiliates, its officers and directors, officers, employees, agents and controlling persons (Xxxxxxx Xxxxx and each such other person being an “Indemnified Party”) from and against any agent or investment adviser thereof against and all losses, claims, damagesdamages and liabilities, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by joint or several, to which such party pursuant Indemnified Party becomes subject under any applicable law, or otherwise related to any actual or threatened action, suit, proceeding or investigation arising out of or based upon in connection with (ia) any transaction contemplated by this Agreement, and (b) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus information (whether oral or preliminary Prospectus, written) or documents furnished or made available by World Trade or Agilent or any amendment of their affiliates in connection with any transaction contemplated pursuant to this Agreement or supplement to any of the foregoing, or (ii) any omission or the alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein (in the case of a Prospectus or a preliminary Prospectusnot misleading, in light of the circumstances then existing) not misleadingunder which they were made; provided, except however, that neither Agilent nor World Trade shall be liable, in each the case insofar as of this clause (b), to the same extent that any such losses, claims, damages or liabilities arise out of or are based upon, any on such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information relating to Xxxxxxx Xxxxx (or the preliminary Prospectus if the Foundation, relevant affiliate thereof) furnished to Agilent or other Person on behalf World Trade by Xxxxxxx Xxxxx expressly for use therein. In no event shall Agilent or World Trade be liable for fees and expenses of the Foundation, failed more than one counsel (in addition to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected any local counsel) separate from their own counsel for all Indemnified Parties in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company one action or any underwriter reasonably requests for use separate but similar or related actions in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act), circumstances. Agilent and World Trade jointly and severally agree to promptly reimburse any agent or investment adviser thereof against Indemnified Party for all losses, claims, damages, liabilities and expenses (including reasonable attorneys' counsel fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Indemnification; Contribution. a. The Placement Agent shall indemnify and hold harmless the Company against any losses, claims, damages, or liabilities to which the Company may become subject, insofar as such losses, claims, damages or liabilities (aor actions in respect thereof) arise out of or are based upon the material inaccuracy of any representation made by the Placement Agent or any of its representatives in this Agreement or in placing or attempting to procure the sale of Securities, or any failure by the Placement Agent or its representatives to comply with this Agreement.
b. The Company shall indemnify and hold harmless the Foundation, its officers and directors, and Placement Agent against any agent or investment adviser thereof against all losses, claims, damages, damages or liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case which it may become subject insofar as the same such losses, claims, damages or liabilities (or action in respect thereof) arise out of or are based uponupon the material inaccuracy of any representation made by the Company in this Agreement, any such failure of the Company to comply with this Agreement or any untrue statement or omission of material fact made by the Company and contained in reliance on and in conformity with information with respect the Offering Materials.
c. Notwithstanding the above, no party shall be indemnified hereunder to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, that any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, damage or liability (or action or proceeding in respect thereof) or expense that for which such party would otherwise be indemnified hereunder arises out of an (i) any untrue statement or alleged untrue statement or omission or alleged omission made in the preliminary Prospectus if the Foundation, reliance upon or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection conformity with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing written information furnished by such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests party specifically for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, offering or (ii) any omission breach of this Agreement by such party. The indemnities provided for in paragraphs 6a or alleged omission 6b above shall extend to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only and inure to the extent that benefit of any such untrue statement or omission is made in reliance on and in conformity with information with respect to person controlling the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statementindemnified party.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any d. Promptly upon receiving written notice of the commencement of any action, suit, proceeding an indemnified party shall notify the other party or investigation or threat thereof made parties in writing for which of such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that commencement. But the failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent so notify the indemnifying party shall have been actually prejudiced as a result of such failure)not relieve it from any liability hereunder. In case of any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereofaction, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, in and to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to . After the indemnifying party), and after indemnified party shall have received notice from the indemnifying party to such indemnified party of its election so to assume agreed counsel that the defense thereofunder such action has been assumed, the indemnifying party shall not be liable to such indemnified party under this Section 11 responsible for any separate legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree the defense thereof.
e. In the event that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above indemnification provided for in this Section 11(d). Notwithstanding section is held to be unenforceable, the other provisions of this Section 11(d)Agreement shall continue in full force and effect and the Company and the Placement Agent shall contribute to the aggregate losses, no underwriter shall be required to contribute claims, damages and liabilities (including the costs of any investigation, legal and other expenses incurred, and any amount paid in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount settlement of any damages which action, suit, proceeding or claims) in such underwriter has otherwise been required to pay amounts as a court of competent jurisdiction may determine or (in the case of settlement, in such amounts as may be agreed upon by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionparties). No Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was is not guilty of such a fraudulent misrepresentation. If indemnification is available under For purposes of this Section 11subsection, each person who controls the indemnifying parties shall indemnify each indemnified party to Company or the fullest extent provided in Section 11(a) or (b) hereofPlacement Agent, as the case may be, without regard shall have the same rights to the relative fault contribution as such party. Any person or party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such indemnifying parties or indemnified party or any party, notify such other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreementparties. The indemnification provided by this Section 11 failure to so notify such person or party shall remain in full force and effect irrespective of not relieve the person or party from any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerobligation hereunder.
Appears in 1 contract
Samples: Placement Agent Agreement (Carrington Laboratories Inc /Tx/)
Indemnification; Contribution. (a) The Company shall indemnify and hold harmless agrees to indemnify, to the Foundationextent permitted by applicable law, each Holder of Registrable Securities, its officers and officers, directors, employees, agents and any agent or investment adviser thereof Affiliates and each Person that controls such Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' ’ fees and expenses) incurred by such party pursuant to any actual or threatened action, suitand expenses of investigation), proceeding or investigation arising out of or based upon (i) resulting from any untrue or alleged untrue statement of material fact contained in any Registration Statementregistration statement, any Prospectus prospectus or preliminary Prospectus, prospectus or any amendment thereof or supplement to any of the foregoingthereto, or (ii) any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, or violation or alleged violation by the Company of the Securities Act, the Exchange Act, any applicable state securities law (or any rule or regulation promulgated under any applicable state securities law), except in each case insofar as the same arise out of or are based upon, contained in any such untrue statement or omission made information furnished in reliance on and in conformity with information with respect to the Foundation furnished writing to the Company by the Foundation or its counsel such Holder expressly for use thereintherein or by such Holder’s failure to deliver a copy of the registration statement or prospectus or any amendments or supplements thereto after the Company has furnished such Holder with a sufficient number of copies of the same. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereofunderwriters, their officers, officers and directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding Holders of Registrable Securities.
(b) To the foregoing provisions of this Section 11(a)extent permitted by applicable law, each Holder shall indemnify the Company, its directors, officers, employees, agents and Affiliates and each Person that controls the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for ) against any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' ’ fees and expenses, and expenses of investigation) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) resulting from any untrue or alleged untrue statement of material fact contained in any Registration Statementthe registration statement, any Prospectus prospectus or preliminary Prospectus, prospectus or any amendment thereof or supplement to any of the foregoing, thereto or (ii) any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made contained in reliance on any information or affidavit so furnished in writing by such Holder; provided that the obligation to indemnify shall be individual, not joint and in conformity with information with respect several, for each Holder and shall be limited to the Foundation furnished net amount of proceeds received by such Holder from the sale of Registrable Securities pursuant to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statementregistration statement.
(c) Any Person entitled to indemnification hereunder agrees to shall (i) give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for claim with respect to which such indemnified party may claim it seeks indemnification or contribution pursuant to this Section 11 (provided that the failure to give such notification prompt notice shall not affect the obligations of the indemnifying party pursuant impair any Person’s right to this Section 11 except indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party shall have been actually prejudiced as a result of party) and (ii) permit such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, of such claim with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to . Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal bear the reasonable fees, costs and expenses of other such separate counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed use of counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination chosen by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to represent the indemnified party would in the reasonable satisfaction judgment of the indemnified party its ability to finance present such defense, or counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such the indemnifying party and, based on advice of counsel to the indemnified party, the indemnified party shall have reasonably concluded that there may be legal defenses available to it which and/or other indemnified parties that are different from inconsistent with or additional in addition to those available to the indemnifying party which, if party; (iii) the indemnifying party and such shall not have employed counsel reasonably satisfactory to the indemnified party were to be represented by represent the same counsel, could result in indemnified party within a conflict of interest for such counsel or materially prejudice the prosecution reasonable time after written notice of the defenses available institution of such action has been delivered to such indemnified the indemnifying party, then such indemnified ; or (iv) the indemnifying party shall have requested the right indemnified party to employ separate counselcounsel at the expense of the indemnifying party. No indemnifying party shall, in which case connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one counsel or separate firm of counsel attorneys (plus one in addition to any local or regulatory counsel or firm of counsel) selected by a majority in interest of the for all indemnified parties shall be borne by parties. If such defense is assumed, the indemnifying party and the fees and expenses of all other counsel retained shall not be subject to any liability for any settlement made by the indemnified parties party without its consent (but such consent shall not be paid by the indemnified partiesunreasonably withheld). No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party shall party, consent to entry of any judgment or enter into any settlement without or compromise that does not include as an unconditional term thereof the consent (which consentgiving by the claimant or plaintiff therein, to such indemnified party, of a release from all liability in the case respect of an action, suit, such claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partylitigation.
(d) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and shall survive the Transfer of Registrable Securities.
(e) If the indemnification required by this Section 6 from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party parties in connection with the actions which resulted in such losses, claims, damages, liabilities and or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party parties shall be determined by reference to, among other things, whether any action violation referred to in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, this Section 6 has been made committed by, or relates to information supplied by, such indemnifying party or indemnified partyparties, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionviolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c6(a) hereofand Section 6(b), any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. .
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d6(e) were determined by a pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d6(e)(i). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless the FoundationNational and its officers, its officers and directors, and any agent or investment adviser thereof against all lossesshareholders, claimsemployees, damagesaffiliates, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person person who controls such underwriters National (and any of its affiliates) within the meaning of Section 15 of the Securities Act of 1933, as amended or Section 20 of the Securities Exchange Act) Act of 1934, as amended (each an “Indemnified Person”), to the same fullest extent lawful, against any and all claims, losses, damages, liabilities, and expenses (including all fees and disbursements of counsel and other expenses reasonably incurred in connection with the investigation of, preparation for and defense of any pending or threatened claim, action, proceeding, inquiry, investigation or litigation, to which an Indemnified Person may become subject) (collectively, “Damages”) incurred that arise out of or are related to National’s engagement under this Agreement. However, this indemnification shall not include any Damages that are found in a final judgment by a court of competent jurisdiction to have resulted from the bad faith, willful misconduct or gross negligence of National.
(b) If the indemnity above is unavailable or insufficient to hold harmless an Indemnified Person, then the Company shall contribute to amounts paid or payable by an Indemnified Person for Damages in such proportion as provided above with respect appropriately reflects the relative benefits received by the Company on the one hand and National on the other. If applicable law does not permit allocation solely on the basis of benefits, then such contribution shall be made in such proportion as appropriately reflects both the relative benefits and relative fault of the parties and other relevant equitable considerations. However, in no event shall National’s aggregate contributions for Damages exceed the amount of fees actually received by National under this Agreement. The relative benefits to the indemnification Company and National of this Agreement shall be deemed to be in the same proportion that the total value paid or received or contemplated to be paid or received by the Company or its security holders in connection with this Agreement bears to the fees paid to National under this Agreement.
(c) Promptly after receipt by National of notice of any claim or the commencement of any action for which an Indemnified Person may be entitled to indemnity, National shall promptly notify the Company of such claim or the commencement of such against the Indemnified Person that would give rise to indemnification. However, any delay or failure to notify the Company will not relieve the Company of its indemnity obligation except to the extent it is materially prejudiced by such delay or failure. The Company may participate in the defense of the Foundationclaim and shall assume the defense of the claim and shall pay as incurred the fees and disbursements of counsel for the proceeding. Notwithstanding In any proceeding where the foregoing provisions Company declines to assume the defense or the Company’s counsel is deemed to have a conflict of this Section 11(a)interest, the Indemnified Person shall have the right to retain its own counsel which shall be reasonably satisfactory to National. The Company shall pay the fees and expenses of such counsel as incurred. However, the Company shall not be liable to responsible for the Foundation, any Person who participates as an underwriter in the offering or sale fees and expenses of Registrable Securities or any more than one counsel (other Person, if any, who controls any such underwriter (within the meaning than counsel of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 record) for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreementall Indemnified Persons.
(bd) In connection with The Company will not enter into any registration of Registrable Securities pursuant to this Agreementwaiver, the Foundation shall furnish to the Company and release or settlement for any underwriter in writing such informationthreatened or pending claim, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing settle any related litigation for which such indemnified party indemnification may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party sought under this Section 11 for any legal expenses of other counsel Agreement (whether or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within Indemnified Persons are a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified formal party to the fullest extent provided in Section 11(a) litigation), unless the waiver, release or (b) hereofsettlement includes an unconditional release of each Indemnified Person from any and all liability arising out of the threatened or pending claim, as the case may beaction, without regard to the relative fault of such indemnifying parties proceeding, investigation or indemnified party or any other equitable consideration provided for in this Section 11(d)litigation.
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Samples: Investment Banking Engagement Agreement (DelMar Pharmaceuticals, Inc.)
Indemnification; Contribution. (a) The Company If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To the extent permitted by applicable law, each of the Trust and the Corporation, severally and not jointly, shall indemnify and hold harmless each Selling Holder, each Person, if any, who controls such Selling Holder within the Foundationmeaning of the Securities Act, its officers and directors, and any each Person who participates as a sales or placement agent or investment adviser thereof underwriter in any offering of the Registered Securities and each officer, director, partner and employee of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys' fees and expensesdisbursements and reasonable expenses of investigation, incurred by such party or to which such party may become subject pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary Prospectus or final Prospectus contained therein, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; provided, however, that the indemnification required by this Section 7.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected by the indemnified person without the consent of the Trust or the Corporation (which consent shall not be unreasonably withheld), nor shall the Trust or the Corporation be liable in any such case for any such loss, claim, damage, liability or expense to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with information furnished to the Trust or the Corporation by the indemnified party expressly for use in connection with such registration; and provided further that the indemnity agreement contained in this Section 7 shall not apply to the extent that any such loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, contained in or omitted from any preliminary Prospectus if the final Prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of the final Prospectus has not been sent or given to such person at or prior to the confirmation of sale to such person if an underwriter, placement agent or Selling Holder was under an obligation to deliver such final Prospectus and failed to do so.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Trust, the Corporation, each of the Trustees of the Trust, each of the directors of the Corporation, each of the officers of the Trust or the Corporation who shall have signed the registration statement, each Person, if any, who controls the Trust or the Corporation within the meaning of the Securities Act, any other Selling Holder, any controlling Person of any such other Selling Holder and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys' fees and disbursements and reasonable expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectusinvestigation, or any amendment or supplement to which any of the foregoingforegoing Persons may otherwise become subject under the Securities Act, the Exchange Act or (ii) any omission other federal or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectuslaws, in light of the circumstances then existing) not misleading, except in each case but only insofar as the same such losses, claims, damages, liabilities and expenses arise out of or are based uponupon any Violation, any in each case to the extent that, but only to the extent that, such untrue statement Violation arises out of or omission is based upon and was made in reliance on and in conformity with upon information with respect to the Foundation furnished to the Company by the Foundation or its counsel such Selling Holder expressly for use therein. In in connection with an Underwritten Offeringsuch registration; provided, the Company shall indemnify the underwriters thereofhowever, their officers, directors and agents and each Person who controls such underwriters that (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Actx) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of required by this Section 11(a), the Company 7.2 shall not be liable apply to the Foundation, any Person who participates as an underwriter amounts paid in the offering or sale settlement of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability or expense if such settlement (or A) is effected without the consent of the relevant Selling Holder (which consent shall not be unreasonably withheld), (B) does not include an unconditional release of the indemnified party from all liability arising out of such action or proceeding in respect thereofclaim or (C) or expense that arises out of an untrue includes a statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundationas to, or other Person an admission of, fault, culpability or a failure to act, by or on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person any indemnified party and such statement or omission was corrected (y) in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation no event shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of indemnity under this Section 13(b), 7.2 exceed the Foundation shall not be liable to net proceeds from the Company, any underwriter, each applicable offering received by such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementSelling Holder.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party 7.3. Promptly after the receipt by such an indemnified party under this Section 7 of any written notice of the commencement of any action, suit, proceeding or proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim indemnification or contribution pursuant to under this Section 11 (provided that failure 7, such indemnified party shall deliver to give such notification shall not affect the obligations of the indemnifying party pursuant a written notice thereof and the indemnifying party shall have the right to this Section 11 except participate in, and, to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wishso desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereof, thereof with nationally recognized counsel experienced in such matters reasonably satisfactory to the indemnified party; provided, however, that an indemnified party shall have the right to retain its own counsel and to not have the indemnifying party assume its defense, with the fees, disbursements and expenses to be paid by the indemnifying party, if representation of such indemnified party (who shall not, except with by the consent of counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party, be party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party)party within a reasonable time following the commencement of any such action, and after notice from the if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for 7 to the extent of such prejudice but shall not relieve the indemnifying party of any legal liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses of other counsel or any other expenses, in each case subsequently incurred by the indemnified party (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred, within thirty (30) days of written notice thereof to the indemnifying party (regardless of whether it is ultimately determined that an indemnified party is not entitled to indemnification hereunder). Any such indemnified party shall have the right to employ separate counsel in connection with any such action, claim or proceeding and to participate in the defense thereof other than reasonable costs thereof, but the fees and expenses of investigation. Notwithstanding such counsel shall be the foregoing, if expenses of such indemnified party unless (i) the indemnifying party shall not have employed counsel reasonably satisfactory has agreed to pay such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, fees and expenses or (ii) the actual indemnifying party shall have failed to promptly assume the defense of such action, claim or potential defendants in, proceeding or targets of, (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and such indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded been advised by counsel that there may be one or more legal defenses available to it which are different from or additional in addition to those available to the indemnifying party which, if and that the indemnifying party and assertion of such indemnified party were to be represented by the same counsel, could result in defenses would create a conflict of interest for such that counsel or materially prejudice employed by the prosecution indemnifying party could not faithfully represent the indemnified party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the defenses available indemnifying party, the indemnifying party shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, then it being understood, however, that the indemnifying party shall not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for all such indemnified parties, unless in the reasonable judgment of such indemnified party shall have the right a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to employ separate counselsuch action, claim or proceeding, in which case event the indemnifying party shall be obligated to pay the fees and expenses of one such additional counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partycounsels).
(d) 7.4. If the indemnification required by this Section 7 from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the in this Section 7:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party parties in connection with the actions which resulted in such losses, claims, damages, liabilities and or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, Violation has been made committed by, or relates to information supplied by, such indemnifying party or indemnified partyparties, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such actionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof7.1 and Section 7.2, any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. .
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d7.4(i). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
7.5. If indemnification is available under this Section 117, the indemnifying parties shall indemnify each indemnified party to the fullest full extent provided in this Section 11(a) or (b) hereof, as the case may be, 7 without regard to the relative fault of such indemnifying parties party or indemnified party or any other equitable consideration provided referred to in Section 7.4 except that no Selling Holder shall be liable for any amount in excess of the net proceeds it receives in the offering which is the subject of the indemnification proceeding.
7.6. The obligations of the Trust and the Corporation under this Section 11(d).
(e) The provisions of this Section 11 7 shall be in addition to any liability which any party the Trust and the Corporation may otherwise have to the persons specified in Section 7.1 and the obligations of the Selling Holders under this Section 7 shall be in addition to any other party liability which such Persons may otherwise have to the Trust and the Corporation. The remedies provided in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to an indemnified party at law or in equity.
7.7. The obligations of the Trust, the Corporation and the Selling Holders of Registrable Securities under this Section 7 shall survive the completion of any termination offering of Registrable Securities pursuant to a registration statement under this Agreement. The indemnification provided by this Section 11 shall remain in full force , and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerotherwise.
Appears in 1 contract
Samples: Registration Rights Agreement (Goldman Sachs Group Lp)
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless the FoundationNewbridge and its officers, its officers and directors, and any agent or investment adviser thereof against all lossesshareholders, claimsemployees, damagesaffiliates, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person person who controls such underwriters Newbridge (and any of its affiliates) within the meaning of Section 15 of the Securities Act of 1933, as amended or Section 20 of the Securities Exchange Act) Act of 1934, as amended (each an “Indemnified Person”), to the same fullest extent as provided above lawful, against any and all claims, losses, damages, liabilities, and expenses (including all fees and disbursements of counsel and other expenses reasonably incurred in connection with respect the investigation of, preparation for and defense of any pending or threatened claim, action, proceeding, inquiry, investigation or litigation, to which an Indemnified Person may become subject) (collectively, “Damages”) incurred that arise out of or are related to any actual or proposed Corporate Advisory assignment or Newbridge ‘s engagement under this Agreement. However, this indemnification shall not include any Damages that are found in a final judgment by a court of competent jurisdiction to have resulted from the bad faith, willful misconduct or negligence of Newbridge. Promptly after receipt by Newbridge of notice of any claim or the commencement of any action for which an Indemnified Person may be entitled to indemnity, Newbridge shall promptly notify the Company of such claim or the commencement of such against the Indemnified Person that would give rise to indemnification. However, any delay or failure to notify the Company will not relieve the Company of its indemnity obligation except to the indemnification extent it is materially prejudiced by such delay or failure. The Company may participate in the defense of the Foundationclaim and shall assume the defense of the claim and shall pay as incurred the fees and disbursements of counsel for the proceeding. Notwithstanding In any proceeding where the foregoing provisions Company declines to assume the defense or the Company’s counsel is deemed to have a conflict of this Section 11(a)interest, the Indemnified Person shall have the right to retain its own counsel which shall be reasonably satisfactory to Newbridge. The Company shall pay the fees and expenses of such counsel as incurred. However, the Company shall not be liable to responsible for the Foundationfees and expenses of more than one counsel (other than counsel of record) for all Indemnified Persons.
b) The Company will not enter into any waiver, any Person who participates as an underwriter in the offering release or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 settlement for any such loss, threatened or pending claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing settle any related litigation for which such indemnified party indemnification may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party sought under this Section 11 for any legal expenses of other counsel Agreement (whether or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within Indemnified Persons are a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified formal party to the fullest extent provided in Section 11(a) litigation), unless the waiver, release or (b) hereofsettlement includes an unconditional release of each Indemnified Person from any and all liability arising out of the threatened or pending claim, as the case may beaction, without regard to the relative fault of such indemnifying parties proceeding, investigation or indemnified party or any other equitable consideration provided for in this Section 11(d)litigation.
(ec) The provisions of Newbridge shall indemnify the Company for any actions on its part related to this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by Agreement for its bad faith, willful misconduct or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannernegligence.
Appears in 1 contract
Samples: Investment Banking Engagement Agreement (Brownie's Marine Group, Inc)
