Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise out of or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding. (b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a). (c) If the indemnification provided for in this Section 2.7 is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly), 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, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 Company and such Holder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 2.7(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 does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c), no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution provisions contained in this Section 2.7 are in addition to any liability which the indemnifying Person may otherwise have to the indemnified Persons referred to above.
Appears in 2 contracts
Samples: Registration Rights Agreement (Senesco Technologies Inc), Registration Rights Agreement (Senesco Technologies Inc)
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Article 4, the Company agrees to will indemnify and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a "Controlling Person"), 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, as the same are incurred), to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading, or sale of such securities, (iii) any violation by the Company of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder or Controlling Person expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder will indemnify and hold harmless each Personother underwriter, if anythe Company (including its directors, officers, employees, shareholders and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees and agents of any of them, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar as such Claims arise out of at common law or are based uponotherwise to the same extent provided in the immediately preceding sentence. In no event, or are caused by any untrue statement or alleged untrue statement however, shall the liability of a material fact contained in any Registration Statement or Prospectus Selling Holder for indemnification under this Section 4.7(a) exceed the lesser of (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company i) that proportion of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as total of such losses, claims, damages, liabilities, judgments damages or expenses of any such liabilities indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing against equal to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy proportion of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to total securities sold under such registration statement which is being sold by such Selling Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (zii) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities proceeds received by such Holder. Selling Holder from its sale of Registrable Securities under such registration statement.
(b) In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against event the Company, any selling Holder or other person receives a complaint, claim or other notice of any liability or action, giving rise to a claim for indemnification under Section 4.7(a) above, the person claiming indemnification under such indemnified Person paragraph shall promptly notify the Company person against whom indemnification is sought of such complaint, notice, claim or action, and such indemnifying person shall have the Company shall assume right to investigate and defend any such loss, claim, damage, liability or action. No indemnifying person in the defense thereofof any such claim or litigation, shall, except with the consent of each indemnified person, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified person of a release from all liability in respect of such claim or litigation. Such indemnified Person The person claiming indemnification shall have the right to employ separate counsel in any such action and to participate in the defense thereof, thereof but the fees and expenses of such counsel shall not be at the expense of the indemnified Person person against whom indemnification is sought (unless (i) the employment of such counsel shall have been specifically authorized in writing by the Companyindemnifying party fails to promptly defend, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one such separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified Persons, which firm counsel shall be (x) designated borne by such indemnified Persons; and (y) reasonably satisfactory the person against whom indemnification is sought). In no event shall a person against whom indemnification is sought be obligated to the Company. The Company shall not be liable indemnify any person for any settlement of any such claim or action or proceeding effected without the Companyindemnifying person's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 4.7(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 4.7, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand other Selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, the other Selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesSelling Holders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c4.7(c) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Selling Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this Section 4.7(c) in excess of the amount lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Registrable Securities sold under such registration statement which are being sold by which such Selling Holder or (ii) the dollar amount of proceeds received by such Selling Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(d) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 are in addition 4.7 shall be deemed to any liability which the indemnifying Person may otherwise have include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified Persons referred party in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in this Section 4.7 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties.
(e) The indemnification provided by this Section 4.7 shall be a continuing right to aboveindemnification and shall survive the registration and sale of any Registrable Securities by any person entitled to indemnification hereunder and the expiration or termination of this Agreement.
Appears in 2 contracts
Samples: Stock Rights and Restrictions Agreement (Vermont Teddy Bear Co Inc), Stock Rights and Restrictions Agreement (Vermont Teddy Bear Co Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless (i) each Holder covered by any Registration Statement, (ii) and each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, person who controls (any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Act (each a “Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"Indemnified Party”), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any loss, damage, expense, liability, judgment or claim (including reasonable legal fees, investigation costs and all losses, claims, damages, liabilities, judgments or other expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person Holder Indemnified Party may become subject incur under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwise, insofar as such Claims arise loss, damage, expense, liability, judgment or claim arises out of or are is based upon, or are caused by 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)thereto or in any preliminary prospectus, or 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 violation by material fact necessary in order to make the Company statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the Securities Act or any state securities lawcircumstances under which they were made, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualificationnot misleading, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by loss, damage, expense, liability, judgment or claim arises out of or is based upon any such untrue statement or omission or alleged untrue statement or omission that is based upon of a material fact contained in, or omitted from, and in conformity with information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person Holder to the Company expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agreesHolder, severally and not jointly, agrees to indemnify indemnify, defend and hold harmless the Company Company, its directors and its directors, officers and any Person controlling (person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of Act (each, a “Company Indemnified Party”) to the same extent as the foregoing indemnity from the Company to each of the indemnified PersonsHolder Indemnified Party, but only (i) with ---- respect to actions insofar as such loss, damage, expense, liability, judgment or claim arises out of or is based on upon any untrue statement or alleged untrue statement of a material fact contained in information relating to such Holder furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or ProspectusProspectus or in any amendment or supplement thereto or in any preliminary prospectus, and (ii) 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 extent 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 light of the gross proceedscircumstances under which they were made, if anynot misleading, 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 Purchaser from Holder upon the sale or other disposition of his or its Restricted the Registrable Securities covered by pursuant to the Shelf Registration Statement giving rise to such Registration Statement. In case indemnification obligation.
(c) If any action action, suit or proceeding shall be (each, a “Proceeding”) is brought against the Company or its directors or officers or any such controlling Person person in respect of which indemnity may be sought against a Holder pursuant to either subsection (a) or (b) of Restricted Securities covered by any Registration Statementthis Section 7, such Holder person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the rights right to employ its own counsel in any such case, but the fees and duties given expenses of such counsel shall be at the Company expense of such Indemnified Party unless the employment of such counsel shall have been authorized in Section 2.7(a) writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (except in which case such Indemnifying Party shall not have the right to direct that portion of the Holder defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of 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 required liable for the 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 assume such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the defense thereof)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 Company or its directors or officers or such controlling Person 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 counsel as contemplated by the rights second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid 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 duties (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to each Holder settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement 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 Section 2.7(a)such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(cd) If the indemnification provided for in this Section 2.7 7 is unavailable to an indemnified party Indemnified Party under Section 2.7(asubsections (a) or and (b) (other than by reason of exceptions provided in those Sections) this Section 7 in respect of any losses, claimsdamages, damagesexpenses, liabilities, judgments or expenses claims referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)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, liabilitiesexpenses, judgments liabilities or expenses claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder Holders on the other hand from sale the offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company on the one hand and such Holder of the Holders on the other in connection with the statements or omissions which resulted in such losses, claims, damages, liabilitiesexpenses, judgments liabilities or expensesclaims, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such Holder the Holders on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder the Holders and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to 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 the second paragraph of Section 2.7(a), include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. Proceeding.
(e) The Company and each Holder of Restricted Securities covered by any Registration Statement the Holders agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c) 7 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 does not take into account of the equitable considerations referred to in the immediately preceding paragraphsubsection (d) above. Notwithstanding the provisions of this Section 2.7(c)7, no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount in excess of the amount by which the dollar amount of proceeds received total price at which the Registrable Securities sold by such Holder upon it were offered to the sale of the Restricted Securities public exceeds the amount of any damages which such Holder 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 misrepresentations 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. The Holders’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 2.7 are 7 shall remain operative and in addition to full force and effect regardless of (i) any liability which termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or any person controlling any Holder, or the indemnifying Person may otherwise have to Company, or the indemnified Persons referred to aboveCompany’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 2 contracts
Samples: Registration Rights Agreement (Cameron International Corp), Registration Rights Agreement (Cooper Cameron Corp)
Indemnification; Contribution. (a) The Company agrees to shall indemnify and hold harmless (i) each Holder covered by any Registration StatementHolder, (ii) its respective officers and directors, and each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Personperson, if any, who controls (such Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act and any agents, representatives or otherwiseadvisers thereof against all losses, insofar as claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses and reasonable costs of investigation) incurred by such Claims arise party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or are based upon, or are caused by upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement Statement, any Prospectus or Prospectus (preliminary Prospectus, or any amendment or supplement thereto)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, or a (iii) any violation or alleged violation by the Company of the Securities Act any United States federal, state or any state securities law, or any common law rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration or qualification, except in each case insofar as such lossesthe same arise out of or are based upon, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon made in reliance on and in conformity with written information relating with respect to such indemnified Person a Holder furnished in writing to the Company by such Holder or on behalf of any of such indemnified Person its counsel expressly for use therein; (y) . In connection with respect to the preliminary Prospectusan Underwritten Offering, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of indemnify the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense underwriters thereof, but the fees their officers, directors and expenses of agents and each Person who controls such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as provided above with respect to the indemnification of each Holder. Notwithstanding the foregoing indemnity from provisions of this Section 11(a), the Company shall not be liable to each any 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 underwriter (within the meaning of Section 15 of the indemnified PersonsSecurities Act or Section 20 of the Exchange Act), but only under this Section 11 for any such loss, claim, damage, liability (ior action or proceeding in respect thereof) with ---- respect to actions based on information relating to such Holder furnished or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in writing by the preliminary Prospectus if a Holder, or other Person on behalf of such Holder expressly Holder, 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 Holders in accordance with this Agreement.
(b) 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 use in any Registration Statement which such indemnified party may claim indemnification or Prospectus, and contribution pursuant to this Section 11 (ii) 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 materially prejudiced as a result of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statementfailure). In case any such action or proceeding shall be brought against any indemnified party and it shall notify the Company or its directors or officers or 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 such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statementother indemnifying party similarly notified, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required 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 Company 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 directors ability to finance such defense, or officers (ii) the actual or potential defendants in, or targets of, any such controlling Person 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 rights right to employ separate counsel, in which case the fees and duties given 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 Holder by Section 2.7(a)indemnifying party.
(c) If the indemnification from the indemnifying party provided for in this Section 2.7 11 is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) hereunder in respect of any losses, claims, damages, liabilities, judgments liabilities or expenses referred to therein, then each applicable the indemnifying party (in the case of the Holders severally and not jointly)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 claims, damages, liabilities, judgments or liabilities and expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 Company indemnifying party and such Holder indemnified party in connection with the statements actions or omissions which resulted in such losses, claims, damages, liabilities, judgments or liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand such indemnifying party and of such Holder on the other indemnified party shall be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been made by, or relates to information supplied by (in writing, in the Company case of a Holder) by, such indemnifying party or by such Holder indemnified party, and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement action or omission. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a)11(b) hereof, any legal or and other fees or and expenses reasonably incurred by such indemnified party in connection with investigating any investigation or defending any action or claimproceeding. The Company and each Holder of Restricted Securities covered by any Registration Statement parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c11(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 does not take into account of the equitable considerations referred to above in this Section 11(c). Any underwriter's obligations in this Section 11(c) to contribute shall be several in proportion to the immediately preceding paragraphnumber of Registrable Securities underwritten by them and not joint. Notwithstanding the provisions of this Section 2.7(c11(c), no Holder (and none of its related indemnified Persons) underwriter shall be required to contribute, in the aggregate, contribute any amount in excess of the amount by which the dollar amount of proceeds received total price at which the Registrable Securities underwritten by such Holder upon it and distributed to the sale of public were offered to the Restricted Securities public exceeds the amount of any damages which such Holder underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution provisions contained 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) hereof without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 2.7 are 11(c).
(d) The provisions of this Section 11 shall be in addition to any liability which the indemnifying Person any party may otherwise have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall survive the transfer of such Registrable Securities by the Holder and shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified Persons referred to aboveparty, 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 (Wellchoice Inc), Registration Rights Agreement (Wellchoice Inc)
Indemnification; Contribution. (a) The Company agrees shall, and shall cause each of its Subsidiaries to, jointly and severally, without limitation as to indemnify time, indemnify, defend and hold harmless (i) harmless, to the full extent permitted by law, each Holder covered by any Registration Statementholder of Registrable Securities, (ii) the partners, members, officers, directors, agents and employees of each other of them, each Person who participates as an underwriter in the offering or sale of controls each such securities, (iii) each Person, if any, who controls holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective partners, members, officers, directors, partnersagents and employees of each such controlling person and any financial or investment adviser (each, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified a “Covered Person"”), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expenses, joint or several (or actions or proceedings, proceedings (whether commenced or threatened), in respect thereofcosts (including, without limitation, costs of preparation and attorneys’ fees) and expenses (including expenses of investigation) (collectively, "Claims"“Losses”), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwiseas incurred, insofar as such Claims arise arising out of or are based upon, or are caused by upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement Statement, prospectus or Prospectus (form of prospectus or in any amendment or supplement thereto)supplements thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable except to the Company relating to any such registration extent that the same arise out of or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by such Covered Person or the related holder of Registrable Securities expressly for use therein or (ii) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration; provided that the Company shall not be liable to any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls such underwriters within the meaning of the Securities Act to the extent that any such Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus if (i) such Person failed to send or deliver a copy of the prospectus with or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim from which such Losses arise, (ii) the prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, and (iii) the Company has complied with its obligations under Section 5D(c). Each indemnity and reimbursement of costs and expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such Covered Person. If the Public Offering pursuant to any registration statement provided for under this Section 5 is made through underwriters, no action or failure to act on the part of such indemnified underwriters (whether or not such underwriter is an Affiliate of any holder of Registrable Securities) shall affect the obligations of the Company to indemnify any holder of Registrable Securities or any other Person expressly pursuant to the preceding sentence. If the Public Offering pursuant to any registration statement provided for use therein; (y) under this Article 5 is made through underwriters, the Company agrees to enter into an underwriting agreement in customary form with such underwriters and the Company agrees to indemnify such underwriters, their officers, directors, employees and agents, if any, and each Person, if any, who controls such underwriters within the meaning of Section 15 of the Securities Act to the same extent as provided in this Section 5F with respect to the preliminary Prospectusindemnification of the holders of Registrable Securities; provided that the Company shall not be required to indemnify any such underwriter, result or any officer, director or employee of such underwriter or any Person who controls such underwriter within the meaning of Section 15 of the Securities Act, to the extent that the loss, claim, damage, liability (or proceedings in respect thereof) or expense for which indemnification is claimed results from such underwriter’s failure to send or give a copy of an amended or supplemented final prospectus to the fact that such Holder sold Securities to a Person to whom there was not sent asserting an untrue statement or given, alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of Registrable Securities to such salePerson if such statement or omission was corrected in such amended or supplemented final prospectus prior to such written confirmation and the underwriter was provided with such amended or supplemented final prospectus.
(b) In connection with any Registration Statement in which a holder of Registrable Securities is participating, a copy such holder, or an authorized officer of such holder, shall furnish to the Company in writing such information regarding such holder as the Company reasonably requests for use in connection with any Registration Statement or prospectus and agrees, severally and not jointly, to indemnify, defend and hold harmless to the full extent permitted by law, the Company, its directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the ProspectusSecurities Act and Section 20 of the Exchange Act), as amended and the partners, members, directors, officers, agents or supplementedemployees of such controlling persons, if from and against all Losses arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, prospectus, or form of prospectus, or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent, but only to the extent, that such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information regarding such holder so furnished in writing by such holder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission was relied upon by the Company in preparation of such Registration Statement, prospectus or form of prospectus; provided that such holder of Registrable Securities shall have not be liable in any such case to the extent that the holder has furnished in writing to the Company within a reasonable period of time prior to the filing of any such Registration Statement or prospectus or amendment or supplement thereto information expressly for use in such Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished copies thereof to the Company, and the Company failed to include such information therein. In no event shall the liability of any holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds (net of payment of all taxes and expenses incurred in connection therewith) received by such holder upon the sale of the Registrable Securities giving rise to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do soindemnification obligation. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party.
(c) If any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall give prompt notice to the party or asserted against any parties from which such indemnity is sought (the “Indemnifying Parties”) of the indemnified Persons commencement of any action, suit, proceeding or investigation or written threat thereof (a “Proceeding”) with respect to which indemnity may be sought against such Indemnified Party seeks indemnification or contribution pursuant hereto; provided that the Company, such indemnified Person shall promptly failure to so notify the Company and Indemnifying Parties shall not relieve the Company Indemnifying Parties from any obligation or liability except to the extent that the Indemnifying Parties have been prejudiced by such failure. The Indemnifying Parties shall assume have the right, exercisable by giving written notice to an Indemnified Party promptly after the receipt of written notice from such Indemnified Party of such Proceeding, to assume, at the Indemnifying Parties’ expense, the defense thereof. Such indemnified Person of any such Proceeding, with counsel reasonably satisfactory to such Indemnified Party; provided that an Indemnified Party or parties (if more than one such Indemnified Party is named in any Proceeding) shall have the right to employ separate counsel in any such action Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless such Indemnified Party or parties unless: (i) the employment of Indemnifying Parties agree to pay such counsel shall have been specifically authorized in writing by the Company, fees and expenses; (ii) the Company shall have failed Indemnifying Parties fail promptly to assume the defense and of such Proceeding or fail to employ counsel, counsel reasonably satisfactory to such Indemnified Party or parties; or (iii) the named parties to any such action Proceeding (including any implied impleaded parties) include both the indemnified Person such Indemnified Party or parties and the Company Indemnifying Parties or an Affiliate of the Indemnifying Parties or such Indemnified Parties, and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which such Indemnified Party or parties that are different from or additional to those available to the Company (Indemnifying Parties, in which case case, if such Indemnified Party or parties notifies the Company Indemnifying Parties in writing that it elects to employ separate counsel at the expense of the Indemnifying Parties, the Indemnifying Parties shall not have the right to assume the defense of thereof and such action on behalf counsel shall be at the expense of the indemnified Person)Indemnifying Parties, it being understood, however, that that, unless there exists a conflict among Indemnified Parties, the Company Indemnifying Parties shall not, in connection with any one such action Proceeding or separate but substantially similar or related actions or proceedings 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 (in addition to any together with appropriate local counsel) at any time for all such Indemnified Party or parties. Whether or not such defense is assumed by the indemnified PersonsIndemnifying Parties, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company Indemnifying Parties or Indemnified Party or parties shall not be liable subject to any liability for any settlement made without its or their consent (but such consent shall not be unreasonably withheld). The Indemnifying Parties shall not consent to entry of any such action judgment or proceeding effected enter into any settlement which (i) provides for other than monetary damages without the Company's prior written consent, consent of the Indemnified Party or parties (which consent shall not be unreasonably withheld unreasonablyor delayed) or (ii) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party or parties of a release, in form and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent substance satisfactory to the entry of judgment on Indemnified Party or otherwise seek to terminate any pending or threatened actionparties, claim, litigation or proceeding from all liability in respect of such Proceeding for which such Indemnified Party would be entitled to indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedinghereunder.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(cd) If the indemnification provided for in this Section 2.7 5F is unavailable to an indemnified party under Section 2.7(a) Indemnified Party or (b) (other than by reason of exceptions provided in those Sections) is insufficient to hold such Indemnified Party harmless for any Losses in respect of any losses, claims, damages, liabilities, judgments or expenses referred to thereinwhich this Section 5F would otherwise apply by its terms, then each applicable indemnifying party (in the case of the Holders severally and not jointly)Indemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall have an obligation to contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossesLosses, claims damages, liabilities, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by fault of the Company Indemnifying Party, on the one hand hand, and the Holder such Indemnified Party, on the other hand from sale of Restricted Securitieshand, or (ii) if such 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 Company and such Holder in connection with the actions, statements or omissions which that resulted in such losses, claims, damages, liabilities, judgments or expenses, Losses as well as any other relevant equitable considerations. The relative fault of the Company such Indemnifying Party, on the one hand hand, and of such Holder Indemnified Party, on the other hand, shall be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been taken by, or relates to information supplied by the Company by, such Indemnifying Party or by such Holder Indemnified Party, and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above any Losses shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), include any legal or other fees or expenses reasonably incurred by such party in connection with investigating any Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 5F(a) or defending any action or claim5F(b) was available to such party. The Company and each Holder of Restricted Securities covered by any Registration Statement parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c5F(d) 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 in the immediately preceding paragraphthis Section 5F(d). Notwithstanding the provisions of this Section 2.7(c5F(d), no Holder (and none an Indemnifying Party that is a holder of its related indemnified Persons) Registrable Securities shall not be required to contribute, in the aggregate, contribute any amount in excess of the amount by which the dollar amount of net proceeds received by such Holder upon the sale of the Restricted Securities Indemnifying Party exceeds the amount of any damages which that such Holder Indemnifying Party has otherwise been required to pay by reason reasons of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution provisions contained in this Section 2.7 are in addition to any liability which the indemnifying Person may otherwise have to the indemnified Persons referred to above.
Appears in 2 contracts
Samples: Securityholders Agreement (Vs Holdings, Inc.), Securityholders Agreement (Vitamin Shoppe, Inc.)
Indemnification; Contribution. (a) The Incident to any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company agrees will, to the extent permitted by law, indemnify and hold harmless (i) each Holder covered by who offers or sells any Registration Statementsuch Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), (ii) and directors, officers, stockholders, affiliates, employees, representatives and agents of any of them, and each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, reasonable expenses and liabilities, judgments or expenses, joint or several (including any reasonable investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or actions proceeding or proceedingsany claim asserted, whether commenced or threatened, in respect thereof) (collectively, "Claims"as the same are incurred), to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such Claims losses, claims, damages or liabilities arise out of or are based upon, or are caused by on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any Registration Statement related preliminary or Prospectus (definitive prospectus, or any amendment or supplement theretoto such registration statement or prospectus), or (ii) any omission or alleged omission to state therein in such document a material fact required to be stated therein in it or necessary to make the statements therein in it not misleading; provided, however, that the Company will not be liable to the extent that (1) such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by or on behalf of such Holder in accordance with Section 4(a) of this Agreement for use in such registration statement, or (2) in the case of a violation sale directly by such Holder (including a sale of Registrable Securities through any underwriter retained by such Holder to engage in a distribution solely on behalf of such Holder), such untrue statement or alleged untrue statement or omission or alleged omission was contained in a preliminary prospectus and corrected in a final or amended prospectus, and such Holder failed to deliver a copy of the Company final or amended prospectus at or prior to the confirmation of the sale of the Registrable Securities to the Person asserting any such loss, claim, damage or liability in any case where such delivery is required by the Securities Act or any state securities lawlaws, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law, or any other law applicable . With respect to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon in the information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with Section 4(a) of this Agreement and said Prospectus, as amended or supplemented, would have corrected for use in such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Companyregistration statement, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, will severally and not jointly, to jointly indemnify and hold harmless the Company and (including its directors, officers officers, employees, representatives and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees, representatives and agents of any Person controlling (of them, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company), from and against any and all losses, claims, damages, reasonable expenses and liabilities, joint or several (including any reasonable 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, as the respective officers, directors, partners, employees, representatives and agents of eachsame are incurred), to which they, or any of them, may become subject under the same extent as Securities Act, the foregoing Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, provided, however, that the indemnification obligations of the Holder contained in this Section 5(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 Holder, which consent shall not be unreasonably withheld; and provided, further, that, in no event shall any indemnity under this Section 5(a) exceed the net proceeds from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, offering received by such Purchaser from Holder, except in the sale case of fraud or other disposition of his or its Restricted Securities covered willful misconduct by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a)Holder.
(cb) If the indemnification provided for in this Section 2.7 5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on other Holders from the other hand from sale offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company and such Holder the other Holders in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Holders shall be deemed to be in the same respective proportions that the net proceeds from the offering received by the Company and the Holders, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on and the one hand and of such Holder on the other Holders shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by or on behalf of the Company or by such Holder the Holders and the parties parties’ relative intent, knowledge, knowledge and access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claiminformation. The Company and each Holder of Restricted Securities covered by any Registration Statement the Holders agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c5(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c), no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(c) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 5 shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in addition this Section 5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. No indemnifying party, in the defense of any such claim or litigation, shall enter into a consent of entry of any judgment or enter into a settlement without the consent of the indemnified party, which consent will not be unreasonably withheld. Any indemnified party that proposes to assert the right to be indemnified under this Section 5 will, promptly after receipt of notice of commencement or threat of any claim or action against such party in respect of which a claim is to be made against an indemnifying party under this Section 5 notify the indemnifying party in writing (such written notice, an “Indemnification Notice”) of the commencement or threat of such action, enclosing a copy of all papers served or notices received (if applicable), but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability that the indemnifying party may have to any liability which indemnified party under the foregoing provisions of this Section 5 unless, and only to the extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying Person party. The indemnified party will have the right to retain its own counsel in any such action if (i) the employment of counsel by the indemnified party has been authorized by the indemnifying party, (ii) the indemnified party’s counsel, shall have reasonably concluded that there is a reasonable likelihood of a conflict of interest between the indemnifying party and the indemnified party in the conduct of the defense of such action or (iii) the indemnifying party shall not in fact have employed counsel to assume the defense of such action within a reasonable period of time following its receipt of the Indemnification Notice, in each of which cases the fees and expenses of the indemnified party’s separate counsel shall be at the expense of the indemnifying party; provided, however, that the indemnified party shall agree to repay any expenses so advanced hereunder if it is ultimately determined by a court of competent jurisdiction that the indemnified party to whom such expenses are advanced is not entitled to be indemnified; and provided, further, that so long as the indemnified party has reasonably concluded that no conflict of interest exists, the indemnifying party may otherwise have assume the defense of any action hereunder with counsel reasonably satisfactory to the indemnified Persons referred to aboveparty.
(d) In the event of an underwritten offering of Registrable Securities under this Agreement, the Company shall enter into standard indemnification and underwriting agreements with the underwriter thereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Winwin Gaming Inc), Joint Venture Agreement (Winwin Gaming Inc)
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Article V, and subject to applicable law, the Company agrees to will indemnify and hold harmless each underwriter, each Investor or Founder (including for purposes of this Article V each Permitted Transferee) who offers or sells any such Registrable Shares in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), and directors, officers, employees and agents of any of them (a "Selling Stockholder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934 (the "Exchange Act") (a "Controlling Person"), 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), as the same are incurred to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading, or sale of such securities, (iii) any violation by the Company of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Stockholder or Controlling Person expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Selling Stockholder expressly for use in such registration statement, such Selling Stockholder will indemnify and hold harmless each Personunderwriter, if anythe Company (including its directors, officers, employees and agents), and each other Selling Stockholder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees and agents of any of them), and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar at common law or otherwise to the same extent provided in the immediately preceding sentence. In no event, however, shall the liability of a Selling Stockholder for indemnification under this Section 5.6(a) in its capacity as such Claims arise out exceed the lesser of or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company i) that proportion of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as total of such losses, claims, damages, liabilities, judgments damages or expenses of any such liabilities indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing against equal to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy proportion of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to total securities sold under such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue registration statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities which is being sold by such Holder. In case any action shall be brought Selling Stockholder or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated proceeds received by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement Selling Stockholder from its sale of any Registrable Shares under such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingregistration statement.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 5.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 5.6, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand other Selling Stockholders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, the Registrable Shares or (ii) if such 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 Company Company, the other Selling Stockholders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Stockholders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Stockholders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Shares. The relative fault of the Company on Company, the one hand Selling Stockholders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Stockholders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesSelling Stockholders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c5.6(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no Holder (and none of its related indemnified Persons) however, shall a Selling Stockholder be required to contribute, in the aggregate, contribute any amount under this Section 5.6(b) in excess of the amount lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Registrable Shares sold under such registration statement which are being sold by which such Selling Stockholder or (ii) the dollar amount of proceeds received by such Holder upon the Selling Stockholder from its sale of the Restricted Securities exceeds the amount of any damages which Registrable Shares under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(c) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 are in addition 5.6 shall be deemed to any liability which the indemnifying Person may otherwise have include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified Persons referred to aboveparty in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in this Section 5.6 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties.
Appears in 2 contracts
Samples: Stockholders' Agreement (Boron Lepore & Associates Inc), Stockholders' Agreement (Boron Lepore & Associates Inc)
Indemnification; Contribution. (a) The Company agrees shall, and shall cause each of its Subsidiaries to, jointly and severally, without limitation as to indemnify time, indemnify, defend and hold harmless (i) harmless, to the fullest extent permitted by law, each Holder covered by any Registration Statementholder of Registrable Securities, (ii) the partners, members, officers, directors, managers, agents, employees and Affiliates of each other of them, each Person who participates as an underwriter in the offering or sale of controls each such securities, (iii) each Person, if any, who controls holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective partners, members, officers, directors, partnersmanagers, employeesagents and employees of each such controlling person and any financial or investment adviser (each, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified a “Covered Person"”), to the fullest extent lawfulpermitted by law, from and against any and all losses, claims, damages, liabilities, judgments or expenses, joint or several (or actions or proceedings, proceedings (whether commenced or threatened), in respect thereofcosts (including reasonable and documented costs of preparation and attorneys’ fees) and expenses (including reasonable and documented expenses of investigation) (as used in this Section 13.7, collectively, "Claims"“Losses”), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwiseas incurred, insofar as such Claims arise arising out of or are based upon, or are caused by upon (A) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement Statement, prospectus or Prospectus (form of prospectus under which any Registrable Securities were registered or in any amendment or supplement theretosupplements thereto or in any preliminary prospectus (if used prior to the effective date of such Registration Statement), or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus or preliminary prospectus, in light of the circumstances under which they were made) not misleading, except to the extent that the same arise out of or are based upon information furnished in writing to the Company by such Covered Person or the related holder of Registrable Securities expressly for use therein or (B) any violation by the Company of any federal, state therein or common law applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration; provided that the Company shall not be liable to any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls such underwriter(s) within the meaning of the Securities Act to the extent that any such Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus if (1) such Person failed to send or deliver a copy of the prospectus with or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim from which such Losses arise, (2) the prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, and (3) the Company has complied with its obligations under Section 13.4(c). Each indemnity and reimbursement of costs and expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such Covered Person. If the Public Offering pursuant to any Registration Statement provided for under this Section 13.7 is made through underwriter(s), no action or failure to act on the part of such underwriter(s) (whether or not such underwriter is an Affiliate of any holder of Registrable Securities) shall affect the obligations of the Company to indemnify any holder of Registrable Securities or any other Person pursuant to this Section 13.7. If the Public Offering pursuant to any Registration Statement provided for under this Article XIII is made through underwriter(s), the Company agrees to enter into an underwriting agreement in customary form with such underwriter(s) and the Company agrees to indemnify such underwriter(s), their officers, directors, managers, employees and agents, if any, and each Person, if any, who controls such underwriter(s) within the meaning of Section 15 of the Securities Act to the same extent as provided in this Section 13.7 with respect to the indemnification of the holders of Registrable Securities; provided that the Company shall not be required to indemnify any such underwriter, or any officer, director, manager or employee of such underwriter or any Person who controls such underwriter within the meaning of Section 15 of the Securities Act, to the extent that the loss, claim, damage, liability (or proceedings in respect thereof) or expense for which indemnification is claimed results from such underwriter’s failure to send or give a copy of an amended or supplemented final prospectus to the Person asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of Registrable Securities to such Person if such statement or omission was corrected in such amended or supplemented final prospectus prior to such written confirmation and the underwriter was provided with such amended or supplemented final prospectus.
(b) In connection with any Registration Statement in which a holder of Registrable Securities is participating, such holder, or an authorized officer of such holder, shall furnish to the Company in writing such information regarding such holder as the Company reasonably requests for use in connection with any Registration Statement or prospectus and agrees, severally and not jointly, to indemnify, defend and hold harmless to the fullest extent permitted by law, the Company, its directors, managers, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the partners, members, directors, managers, officers, agents or employees of such controlling persons, from and against all Losses arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, prospectus, or form of prospectus, or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating extent, but only to any such registration or qualificationthe extent, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any that such untrue statement or omission or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information regarding such holder so furnished in writing by such holder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission was relied upon by the Company in preparation of such Registration Statement, prospectus or form of prospectus; provided that is based upon information relating such holder of Registrable Securities shall not be liable in any such case to such indemnified Person the extent that the holder has furnished in writing to the Company by or on behalf within a reasonable period of time prior to the filing of any of such indemnified Person Registration Statement or prospectus or amendment or supplement thereto information expressly for use therein; (y) with respect in such Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished to the preliminary ProspectusCompany, result from and the fact that Company failed to include such Holder sold information therein. In no event shall the liability of any holder of Registrable Securities to a Person to whom there was not sent or given, at or prior to hereunder be greater in amount than the written confirmation of such sale, a copy dollar amount of the Prospectusproceeds (net of payment of all taxes, as amended or supplemented, if fees and expenses incurred in connection therewith) received by such holder upon the Company shall have previously furnished copies thereof sale of the Registrable Securities giving rise to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do soindemnification obligation. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Indemnified Party.
(c) If any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought entitled to indemnification or asserted against any contribution pursuant to this Section 13.7 (an “Indemnified Party”), then such Indemnified Party shall give prompt notice to the party or parties from which such indemnity is sought (the “Indemnifying Parties”) of the indemnified Persons commencement of any action, suit, proceeding or investigation or written threat thereof (each, a “Proceeding”) with respect to which indemnity may be sought against such Indemnified Party seeks indemnification or contribution pursuant hereto; provided that the Company, such indemnified Person shall promptly failure to so notify the Company and Indemnifying Parties shall not relieve the Company Indemnifying Parties from any obligation or liability except to the extent that the Indemnifying Parties have been prejudiced by such failure. The Indemnifying Parties shall assume have the right, exercisable by giving written notice to an Indemnified Party promptly after the receipt of written notice from such Indemnified Party of such Proceeding, to assume, at the Indemnifying Parties’ expense, the defense thereof. Such indemnified Person of any such Proceeding, with counsel reasonably satisfactory to such Indemnified Party; provided that an Indemnified Party or parties (if more than one such Indemnified Party is named in any Proceeding) shall have the right to employ separate counsel in any such action Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless such Indemnified Party or parties unless: (iA) the employment of Indemnifying Parties agree to pay such counsel shall have been specifically authorized in writing by the Company, fees and expenses; (iiB) the Company shall have failed Indemnifying Parties fail promptly to assume the defense and of such Proceeding or fail to employ counsel, counsel reasonably satisfactory to such Indemnified Party or parties; or (iiiC) the named parties to any such action Proceeding (including any implied impleaded parties) include both the indemnified Person such Indemnified Party or parties and the Company Indemnifying Parties or an Affiliate of the Indemnifying Parties or such Indemnified Parties, and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which such Indemnified Party or parties that are different from or additional to those available to the Company (Indemnifying Parties, in which case case, if such Indemnified Party or parties notifies the Company Indemnifying Parties in writing that it elects to employ separate counsel at the expense of the Indemnifying Parties, the Indemnifying Parties shall not have the right to assume the defense of thereof and such action on behalf counsel shall be at the expense of the indemnified Person)Indemnifying Parties, it being understood, however, that that, unless there exists a conflict among Indemnified Parties, the Company Indemnifying Parties shall not, in connection with any one such action Proceeding or separate but substantially similar or related actions or proceedings 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 (in addition to any together with appropriate local counsel) at any time for all such Indemnified Party or parties. Whether or not such defense is assumed by the indemnified PersonsIndemnifying Parties, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company Indemnifying Parties or Indemnified Party or parties shall not be liable subject to any liability for any settlement made without its or their consent (but such consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Parties shall not consent to entry of any such action judgment or proceeding effected enter into any settlement which (1) provides for other than monetary damages without the Company's prior written consent, consent of the Indemnified Party or parties (which consent shall not be withheld unreasonablyunreasonably withheld, conditioned or delayed) or (2) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party or parties of a release, in form and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent substance satisfactory to the entry of judgment on Indemnified Party or otherwise seek to terminate any pending or threatened actionparties, claim, litigation or proceeding from all liability in respect of such Proceeding for which such Indemnified Party would be entitled to indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedinghereunder.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(cd) If the indemnification provided for in this Section 2.7 13.7 is unavailable to an indemnified party under Section 2.7(a) Indemnified Party or (b) (other than by reason of exceptions provided in those Sections) is insufficient to hold such Indemnified Party harmless for any Losses in respect of any losses, claims, damages, liabilities, judgments or expenses referred to thereinwhich this Section 13.7 would otherwise apply by its terms, then each applicable indemnifying party (in the case of the Holders severally and not jointly)Indemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall have an obligation to contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossesLosses, claims damages, liabilities, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by fault of the Company Indemnifying Party, on the one hand hand, and the Holder such Indemnified Party, on the other hand from sale of Restricted Securitieshand, or (ii) if such 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 Company and such Holder in connection with the actions, statements or omissions which that resulted in such losses, claims, damages, liabilities, judgments or expenses, Losses as well as any other relevant equitable considerations. The relative fault of the Company such Indemnifying Party, on the one hand hand, and of such Holder Indemnified Party, on the other hand, shall be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been taken by, or relates to information supplied by the Company by, such Indemnifying Party or by such Holder Indemnified Party, and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above any Losses shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), include any legal or other fees or expenses reasonably incurred by such party in connection with investigating any Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 13.7(a) or defending any action or claim13.7(b) was available to such party. The Company and each Holder of Restricted Securities covered by any Registration Statement parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c13.7(d) 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 in the immediately preceding paragraphthis Section 13.7(d). Notwithstanding the provisions of this Section 2.7(c13.7(d), no Holder (and none an Indemnifying Party that is a holder of its related indemnified Persons) Registrable Securities shall not be required to contribute, in the aggregate, contribute any amount in excess of the amount by which the dollar amount of net proceeds received by such Holder upon the sale of the Restricted Securities Indemnifying Party exceeds the amount of any damages which that such Holder Indemnifying Party has otherwise been required to pay by reason reasons of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution provisions contained in this Section 2.7 are in addition to any liability which the indemnifying Person may otherwise have to the indemnified Persons referred to above.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Hc2 Holdings, Inc.), Business Purchase Agreement (Hc2 Holdings, Inc.)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
(ai) The To the extent permitted by applicable law, the Company agrees to shall indemnify and hold harmless each Holder, and the partners, members, officers, directors, employees, and stockholders of each such Holder; legal counsel and accountants for each such Holder; any underwriter (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter defined in the offering or sale of Securities Act) for each such securities, (iii) Holder; and each Person, if any, who controls (such Holder or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expenses, liabilities and expenses (joint or several (or actions or proceedingsseveral), whether commenced or threatened, in respect thereof) including reasonable attorney’s fees and disbursements and reasonable expenses of investigation (collectively, "Claims"“Losses”), incurred by such Person pursuant to any actual or threatened action, suit, proceeding or investigation, or to which such indemnified Person any of the foregoing Persons may otherwise become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state laws, but only insofar as such Claims Losses arise out of or are based uponupon any of the following statements or omissions (collectively, or are caused by a “Violation”):
(1) any untrue statement or alleged untrue statement of a material fact contained in the registration statement, including any Registration Statement preliminary Prospectus or final Prospectus (or any amendment or supplement thereto)contained therein, or any amendments or supplements thereto; or
(2) the omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; provided, or a violation however, that the indemnification required by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable this Section 2(f)(i) shall not apply to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses amounts paid in settlement of any such indemnified Person; Loss if such settlement is effected without the consent of the Company (x) are caused by which consent shall not be unreasonably withheld), nor shall the Company be liable in any such untrue statement case for any such Loss to the extent that it arises out of or omission or alleged untrue statement or omission that is based upon a Violation which occurs in reliance upon and in conformity with information relating to such indemnified Person furnished in writing to the Company by or on behalf of a Holder or any of such indemnified Person underwriter expressly for use thereinin connection with such registration; (yand provided, further, that any indemnification required by this Section 2(f)(i) with respect 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, or an omission or alleged omission to state a material fact, included in or omitted from any preliminary Prospectusprospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, result from or such omission or alleged omission, and a copy of the fact that such Holder sold Securities to a Person to whom there was final prospectus has not been sent or given, given by the Holder or any underwriter to the Person alleging damage at or prior to the written confirmation of sale to such salePerson; and provided, a copy further, that this indemnity shall not apply to the extent that any such Loss is based on an offer or Transfer of Registrable Securities during any period which the Company has notified the Holder that such offers and Transfers must cease under the Agreement, including under Section 2(b), Section 2(c)(ii) or Section 2(c)(v) .
(ii) To the extent permitted by applicable law, the Holders (severally and not jointly) shall indemnify and hold harmless the Company, each of the Prospectusdirectors of the Company, as amended or supplementedeach of the officers of the Company who shall have signed the Resale Registration Statement, each Person, if any, who controls the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result within the meaning of the use Securities Act, and each officer, director, partner, and employee of such controlling Person, against any and all Losses incurred by an indemnified such Person of pursuant to any Prospectus whenactual or threatened action, upon receipt of a notice from the Company suit, proceeding or investigation, or to which any of the existence of any fact of foregoing Persons may otherwise become subject under the kind described in Section 2.3(b)(iv)Securities Act, the indemnified Person Exchange Act or other federal or state laws, but only insofar as such Losses arise out of or are based upon any Violation, in each case to the related Holder was not permitted to do so. Such indemnity shall remain extent that such Violation arises out of or is based upon information furnished in full force and effect regardless of any investigation made writing by or on behalf of a Holder expressly for use in connection with such registration, or upon the Holder’s failure to properly and timely deliver an “official” Prospectus, or upon the Holder’s use of a written or oral prospectus other than the “official” Prospectus; provided, however, that any indemnified Person and indemnification required by this Section 2(f)(ii) shall survive not apply to amounts paid in settlement of any such Loss if such settlement is effected without the transfer of such securities by such Holder. In case any action shall be brought or asserted against any consent of the Holders (which consent shall not be unreasonably withheld) and in no event shall the amount of any indemnity obligation under this Section 2(f)(ii) exceed the gross proceeds from the applicable offering received by the Holders.
(iii) Promptly after receipt by an indemnified Persons with respect to party under this Section 2(f) of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which indemnity such indemnified party may be sought against the Companymake a claim under this Section 2(f), such indemnified Person party shall promptly notify deliver to the Company indemnifying party a written notice thereof and the Company indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereofthereof with counsel reasonably satisfactory to the indemnified party; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and disbursements and expenses (in each case, to the extent reasonable) to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. Such The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified Person party under this Section 2(f) to the extent, but only to the extent, of such prejudice but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 2(f). Any such indemnified party shall have the right to employ separate counsel in any such action action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense expenses of the such indemnified Person party unless (i) the employment of indemnifying party has agreed to pay such counsel shall have been specifically authorized in writing by the Company, fees and expenses or (ii) the Company indemnifying party shall have failed to promptly assume the defense and employ counselof such action, claim or proceeding or (iii) the named parties to any such action action, claim or proceeding (including any implied impleaded parties) include both the such indemnified Person party and the Company indemnifying party, and the such indemnified Person party shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which that are different from or additional in addition to those available to the Company indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party could not faithfully represent the indemnified party (in which case case, if such indemnified party notifies the Company indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action action, claim or proceeding on behalf of the such indemnified Person)party, it being understood, however, that the Company indemnifying party shall not, in connection with any one such action action, claim or proceeding or separate but substantially similar or related actions 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 (in addition to any together with appropriate local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto)parties, unless in the reasonable judgment of such settlement, compromise, consent or termination includes an unconditional release indemnified party a conflict of each interest may exist between such indemnified Person from all liability arising out party and any other of such indemnified parties with respect to such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally in which event the indemnifying party shall be obligated to pay the reasonable fees and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf expenses of such Holder expressly for use in any Registration Statement additional counsel or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(acounsels).
(civ) If the indemnification provided for in required by this Section 2.7 2(f) from the indemnifying party is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) hereunder in respect of any losses, claims, damages, liabilities, judgments or expenses Losses referred to therein, then each applicable in this Section 2(f) :
(1) the indemnifying party (in the case of the Holders severally and not jointly)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, judgments or expenses (i) Losses in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 Company indemnifying party and such Holder indemnified parties in connection with the statements or omissions which actions that resulted in such losses, claims, damages, liabilities, judgments or expensesLosses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand such indemnifying party and of such Holder on the other indemnified parties shall be determined by reference to, among other things, whether the untrue any Violation has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company by, such indemnifying party or by such Holder indemnified parties, and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionViolation. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments and expenses Losses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a2(f)(i), 2(f)(ii) and 2(f)(iii), any legal or other fees or expenses reasonably incurred by such party in connection with investigating any investigation or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement proceeding;
(2) the parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c2(f)(iv) 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 does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c2(f)(iv)(1), no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f11(e) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. .
(v) The indemnity obligations of the Company and contribution provisions contained in the Holders under this Section 2.7 are in addition to 2(f) shall survive the completion of any liability which the indemnifying Person may otherwise have offering of Registrable Securities pursuant to the indemnified Persons referred to aboveregistration statement under this Agreement, and otherwise.
Appears in 2 contracts
Samples: Registration Rights Agreement (Akorn Inc), Registration Rights Agreement (Akorn Inc)
Indemnification; Contribution. (aA) The Incident to any registration statement referred to in this Agreement, the Company agrees to will indemnify and hold harmless (i) each underwriter, each Holder covered by who offers or sells any Registration Statementsuch Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a "Controlling Person")), from and against any and all losses, claims, damages, expenses and liabilities, joint or several (including any investigation, reasonable attorney's fees and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, as the same are incurred), to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (x) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (iiy) any omission or alleged omission to state in such document a material fact required to be stated in it, in light of the circumstances under which it was made, or necessary to make the statements in it not misleading, or (z) any violation by the Company of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder or Controlling Person expressly for use in such registration statement. With respect to an untrue statement or omission or alleged untrue statement or omission made in reliance upon the information furnished in writing to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder will indemnify and hold harmless each underwriter, the Company (including its directors, officers, employees and agents), each other Person who participates as an underwriter in the offering or sale Holder (including its partners (including partners of partners and stockholders of such securitiespartners) and directors, (iii) officers, employees and agents of any of them, and each Person, if any, person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar as such Claims arise out of at common law or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable otherwise to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate same extent provided in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Companyimmediately preceding sentence. The Company shall not be liable obligated hereunder to indemnify any Holder for any amount paid in settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment liability or expense by reason of any action if such settlement of any action is effected with without the written consent of the CompanyCompany (which consent shall not be unreasonably withheld). The Company In no event, however, shall notthe liability of a Selling Holder for indemnification under this Section 5 exceed the lesser of (x) that proportion of the total of such losses, without the prior written consent of each claims, damages or liabilities indemnified Person, settle or compromise or consent against equal to the entry proportion of judgment on the total securities sold under such registration statement which is being sold by such Selling Holder or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect (y) the proceeds received by such Selling Holder from its sale of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless Registrable Securities under such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingregistration statement.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(cB) If the indemnification provided for in this Section 2.7 5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (ix) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand other Selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, the Registrable Securities or (iiy) if such the allocation provided by clause (ix) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (ix) above but also the relative fault of the Company Company, the other Selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesSelling Holders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c5(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Selling Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this Section 5(b) in excess of the amount lesser of (x) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Registrable Securities sold under such registration statement which are being sold by which such Selling Holder or (y) the dollar amount of proceeds received by such Selling Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(C) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 are in addition 5 shall be 10 deemed to any liability which the indemnifying Person may otherwise have include, subject to the limitations set forth above, any reasonable legal or other expenses reasonably incurred by such indemnified Persons referred to aboveparty in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in this Section 5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties.
Appears in 2 contracts
Samples: Registration Rights Agreement (Physicians Specialty Corp), Registration Rights Agreement (Physicians Specialty Corp)
Indemnification; Contribution. (a) Indemnification by the Company. The Company agrees to indemnify ------------------------------ and hold harmless (i) each Holder covered by any Registration Statementthe Purchaser, (ii) each other Person who participates as an underwriter in Holder of the offering or sale of such securitiesRegistrable Shares, (iii) each Personperson, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter of the foregoing (any of the Persons persons referred to in this clause (iii) being hereinafter referred to as a "controlling Personperson"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such the Purchaser, each Holder or underwriter of the Registrable Shares, or any controlling Person person thereof (any Person person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified PersonIndemnified Party"), to the fullest extent lawful, as follows:
(i) from and against any and all lossesloss, claimsclaim, damagesliability, liabilitiesdamage and expense whatsoever, judgments or expensesas incurred, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise arising out of or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto)) pursuant to which Registrable Shares were registered under the Securities Act including all documents incorporated therein by reference, or any the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleadingtherein, or a violation by the Company in light of the Securities Act circumstances under which they were made, not misleading or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly), 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, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 Company and such Holder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such Holder on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto), including all documents incorporated therein by reference, or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 2.7(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 does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c), no Holder (and none of its related indemnified Persons) shall be required to contributebe stated therein or necessary in order to make the statements therein, in the aggregate, any amount in excess light of the amount by circumstances under which they were made, not misleading; provided, -------- however, that such indemnity with respect to any Prospectus shall not inure to ------- the dollar amount of proceeds received by such Holder upon the sale benefit of the Restricted Securities exceeds Holder (or any controlling person thereof) to the amount of extent that any damages which such Holder has otherwise been required to pay by reason loss, claim, liability, damage or expense arises out of such Holder's failure to send or give a copy of the final Prospectus, as the same may be then supplemented or amended, to the person asserting an untrue statement or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentations (within omission at or prior to the meaning of Section 11(f) written confirmation of the Securities Actsale of Registrable Shares to such person if such statement or omission was corrected in such final Prospectus.
(ii) from and against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, if such settlement is effected with the written consent of the Company (which consent shall not be entitled unreasonably withheld); and
(iii) from and against any and all expense whatsoever, as incurred (including reasonable fees and disbursements of counsel), incurred in investigating, preparing or defending against any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to contribution from the extent that any Person who was such expense is not guilty of such fraudulent misrepresentation. The paid under subparagraph (i) or (ii) above; provided, however, that this indemnity and contribution provisions contained in this Section 2.7 are in addition agreement does not apply to the -------- ------- Holder with respect to any liability which the indemnifying Person may otherwise have loss, liability, claim, damage or expense to the indemnified Persons referred extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to abovethe Company by such Holder expressly for use in a Registration Statement (or any amendment thereto) or any Prospectus (or any amendment or supplement thereto).
Appears in 1 contract
Samples: Registration Rights Agreement (Capital Automotive Reit)
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Article IV and subject to applicable law, the Company agrees to will indemnify and hold harmless (i) each underwriter, each Holder covered by who offers or sells any Registration Statementsuch Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), and directors, officers, employees and agents of any of them (ii) a "Selling Holder"), and each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter Act (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Controlling Person")) (each, and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified PersonIndemnified Party"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, 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 actions proceeding or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"any claim asserted), to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such Claims losses, claims, damages, expenses or liabilities arise out of or are based upon, or are caused by on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any Registration Statement related preliminary or Prospectus (definitive prospectus, or any amendment or supplement theretoto such registration statement or prospectus), or (ii) any omission or alleged omission to state therein in such document a material fact required to be stated therein in it or necessary to make the statements therein in it not misleading, or a (iii) any violation by the Company of the Securities Act or Act, any state securities law, or "blue sky" laws or any rule or regulation promulgated under thereunder in connection with such registration; PROVIDED, HOWEVER, that the Securities Act Company will not be liable to any Indemnified Party to the extent that such loss, claim, damage, expense or any state securities law, liability arises from and is based on an untrue statement or any other law applicable omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company relating to any by such Indemnified Party expressly for use in such registration statement (in such Person's capacity as a shareholder of the Company and not in its capacity as an officer or qualification, except insofar director of the Company and which such information relates to such Person's capacity as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; a shareholder). With respect to (xbut only with respect to) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon in the information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Selling Holder expressly for use in such registration statement (in such Person's capacity as a shareholder of the Company and not in its capacity as an officer or director of the Company and which such information relates to such Person's capacity as a shareholder), such Selling Holder will indemnify and hold harmless each underwriter, the Company (including its directors, officers, employees and agents), each other Investor (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees and agents of any Registration Statement or Prospectusof them) so registered, and each Controlling Person thereof, from and against any and all losses, claims, damages, expenses and liabilities, joint or several, to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise to the same extent provided in the immediately preceding sentence. In no event, however, shall the aggregate liability of a Selling Holder for indemnification and/or contribution under this Section 4.7 in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) to the extent of the gross proceeds, if any, net cash proceeds received by such Purchaser Selling Holder from the its sale or other disposition of his or its Restricted Registrable Securities covered by under such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a)registration statement.
(cb) If the indemnification provided for in this Section 2.7 4.7(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 4.7, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand Selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, the Selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesSelling Holders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c4.7(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Selling Holder (and none of its related indemnified Persons) shall be required to contributemake any indemnification payment under Section 4.7(a) and/or contribute any amount under this Section 4.7(b) in excess, in the aggregate, any amount in excess of the amount lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Registrable Securities sold under such registration statement which are being sold by which such Selling Holder or (ii) the dollar amount of net cash proceeds received by such Selling Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(c) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 are in addition 4.7 shall be deemed to any liability which the indemnifying Person may otherwise have include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified Persons referred to aboveparty in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in this Section 4.7 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties.
Appears in 1 contract
Samples: Securityholders' Agreement (Harvard Bioscience Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless each Initial Purchaser, each Holder, each person (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each a "Controlling Person"), if any, who controls (any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), Act and (iv) the respective officers, directors, partners, employees, representatives partners and agents employees of any such Holder or underwriter Initial Purchaser, the Holders or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Controlling Person"), to the fullest extent lawful, from and against any and all lossesloss, claimsdamage, damagesexpense, liabilitiesliability, judgments claim or expenses, joint or several (or any actions or proceedings, whether commenced or threatened, in respect thereofthereof (including the reasonable cost of investigation) (collectively, "Claims"), to which such indemnified Person Indemnified Party (as defined below) may incur or become subject to under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwise, insofar as such Claims arise loss, damage, expense, liability, claim or action arises out of or are is based upon, or are caused by upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus (Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto)thereto or in any preliminary prospectus, or 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 violation by 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 such statements were made, not misleading, and the Company of shall reimburse, as incurred, the Securities Act Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any state securities lawsuch loss, damage, expense, liability, claim or any rule or regulation promulgated under the Securities Act or any state securities lawaction in respect thereof; provided, or any other law applicable to however, that the Company relating shall not be required to provide any indemnity pursuant to this Section 6(a) in any such registration or qualification, except case insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by loss, damage, expense, liability, claim or action arises out of or is based upon any such untrue statement or omission or alleged untrue statement or omission that is based upon of a material fact contained in, or omitted from, and in conformity with information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person an Initial Purchaser or a Holder to the Company expressly for use therein; in, any Shelf Registration Statement or any Prospectus. This indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(yb) with respect Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the preliminary ProspectusCompany, result from the fact that such Holder sold Securities to a any Controlling Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the ProspectusCompany and their respective directors, officers and employees from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Act, the Exchange Act or otherwise, insofar as amended such loss, damage, expense, liability, claim or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended action arises out of or supplemented, would have corrected such is based upon any untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt alleged untrue statement of a notice from material fact contained in, and in conformity with information (the Company of the existence of any fact of the kind described "Holder Information") furnished in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made writing by or on behalf of such Holder to the Company expressly for use in, any indemnified Person and Shelf Registration Statement or Prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information required to be stated in any Shelf Registration Statement or Prospectus or necessary to make such Holder Information not misleading; and, subject to the limitation set forth in the immediately preceding clause, each Holder shall survive reimburse, as incurred, the transfer Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of such securities its controlling persons. 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. In case Holder upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action shall be action, suit or proceeding (each, a "Proceeding") is brought or asserted against any person in respect of the indemnified Persons with respect to which indemnity may be sought against the Companypursuant to either Section 6(a) or Section 6(b), such indemnified Person person (the "Indemnified Party") shall promptly notify the Company person against whom such indemnity may be sought (the "Indemnifying Party") in writing of the institution of such Proceeding and the Company Indemnifying Party shall assume the defense thereofof such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such indemnified Person Indemnified Party shall have the right to employ separate its own counsel in any such action and to participate in the defense thereofcase, but the fees and expenses of such counsel shall be at the expense of the indemnified Person such Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by such Indemnifying Party in connection with the Company, (ii) defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the Company defense of such Proceeding within a reasonable period of time or such Indemnified Party shall have failed to assume reasonably concluded upon the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its written advice of counsel that there may be one or more legal defenses available to it which that are different from or from, additional to or in conflict with those available to the Company such Indemnifying Party (in which case the Company such Indemnifying Party shall not have the right to assume direct that portion of the defense of such action Proceeding on behalf of the indemnified PersonIndemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that the Company such Indemnifying Party shall not, in connection with such action or similar or related actions or proceedings arising out of the same general allegations or circumstances, not be liable for the reasonable fees and expenses of more than one separate firm counsel in any one Proceeding or series of attorneys (in addition related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Companyaction). The Company An Indemnifying Party shall not be liable for any settlement of any such action or proceeding Proceeding effected without the Company's prior written consentconsent of such Indemnifying Party, which but if settled with the written consent shall not be withheld unreasonablyof such Indemnifying Party, and the Company such Indemnifying Party agrees to indemnify and hold harmless any indemnified Person an Indemnified Party from and against any loss, claim, damage, liability, judgment loss or expense liability by reason of any settlement of any action effected with the written consent of the Companysuch settlement. The Company shall notNo Indemnifying Party shall, without the prior written consent of each indemnified Personany Indemnified Party, settle or compromise or consent to the entry effect any settlement of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding Proceeding in respect of which indemnification such Indemnified Party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not any indemnified Person is a party thereto)by such Indemnified Party, unless such settlement, compromise, consent or termination settlement includes an unconditional release of each indemnified Person such Indemnified Party from all liability arising out on claims that are the subject matter of such action, claim litigation Proceeding and does not include an admission of fault or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, culpability or a failure to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing act by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a)Indemnified Party.
(cd) If the indemnification provided for in this Section 2.7 6 is unavailable to an indemnified party Indemnified Party under Section 2.7(a6(a) or (b) (other than by reason of exceptions provided in those Sections) Section 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expenses actions referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)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, judgments claims or expenses actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and by the Holder Holders or the Initial Purchasers, on the other hand hand, from sale the offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, on the one hand, and such Holder of the Holders or the Initial Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expensesactions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of such Holder the Holders or the Initial Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder the Holders or the Initial Purchasers and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments expenses, liabilities, claims and expenses actions referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. Proceeding.
(e) The Company Company, the Holders and each Holder of Restricted Securities covered by any Registration Statement the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c) 6 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 does not take into account of the equitable considerations referred to in the immediately preceding paragraphSection 6(d) above. Notwithstanding the provisions of this Section 2.7(c)6, no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount in excess of the amount by which the dollar amount of proceeds received total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder upon were offered to the sale of the Restricted Securities public exceeds the amount of any damages which such Holder 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 misrepresentations 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. The Holders' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 2.7 are 6 shall remain operative and in addition to full force and effect regardless of (i) any liability which termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnifying Person may otherwise have to Initial Purchasers or any person controlling any Holder or Initial Purchaser, or the indemnified Persons referred to aboveCompany, or the Company's officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees shall, and shall cause each of its Subsidiaries to, jointly and severally, without limitation as to indemnify time, indemnify, defend and hold harmless (i) harmless, to the full extent permitted by law, each Holder covered by any Registration Statementholder of Registrable Securities, (ii) the partners, members, officers, directors, agents and employees of each other of them, each Person who participates as an underwriter in the offering or sale of controls each such securities, (iii) each Person, if any, who controls holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective partners, members, officers, directors, partnersagents and employees of each such controlling person and any financial or investment adviser (each, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified a “Covered Person"”), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expenses, joint or several (or actions or proceedings, proceedings (whether commenced or threatened), in respect thereofcosts (including, without limitation, costs of preparation and attorneys’ fees) and expenses (including expenses of investigation) (collectively, "Claims"“Losses”), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwiseas incurred, insofar as such Claims arise arising out of or are based upon, or are caused by upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement Statement, prospectus or Prospectus (form of prospectus or in any amendment or supplement thereto)supplements thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable except to the Company relating to any such registration extent that the same arise out of or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by such Covered Person or the related holder of Registrable Securities expressly for use therein or (ii) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration; provided, that the Company shall not be liable to any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls such underwriters within the meaning of the Securities Act to the extent that any such Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus if (A) such Person failed to send or deliver a copy of the prospectus with or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim from which such Losses arise, (B) the prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission and (C) the Company has complied with its obligations under Section 5D(c). Each indemnity and reimbursement of costs and expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such Covered Person. If the Public Offering pursuant to any Registration Statement provided for under this Section 5 is made through underwriters, (x) no action or failure to act on the part of such indemnified underwriters (whether or not such underwriter is an Affiliate of any holder of Registrable Securities) shall affect the obligations of the Company to indemnify any holder of Registrable Securities or any other Person expressly for use therein; pursuant to the preceding sentence and (y) the Company agrees to enter into an underwriting agreement in customary form with such underwriters and the Company agrees to indemnify such underwriters, their officers, directors, employees and agents, if any, and each Person, if any, who controls such underwriters within the meaning of Section 15 of the Securities Act to the same extent as provided in this Section 5F with respect to the preliminary Prospectusindemnification of the holders of Registrable Securities; provided, result that the Company shall not be required to indemnify any such underwriter, or any officer, director or employee of such underwriter or any Person who controls such underwriter within the meaning of Section 15 of the Securities Act, to the extent that the loss, claim, damage, liability (or proceedings in respect thereof) or expense for which indemnification is claimed results from such underwriter’s failure to send or give a copy of an amended or supplemented final prospectus to the fact that such Holder sold Securities to a Person to whom there was not sent asserting an untrue statement or given, alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of Registrable Securities to such salePerson if such statement or omission was corrected in such amended or supplemented final prospectus prior to such written confirmation and the underwriter was provided with such amended or supplemented final prospectus.
(b) In connection with any Registration Statement in which a holder of Registrable Securities is participating, a copy such holder, or an authorized officer of such holder, shall furnish to the Company in writing such information regarding such holder as the Company reasonably requests for use in connection with any Registration Statement or prospectus and agrees, severally and not jointly, to indemnify, defend and hold harmless to the full extent permitted by law, the Company, its directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the ProspectusSecurities Act and Section 20 of the Exchange Act), as amended and the partners, members, directors, officers, agents or supplementedemployees of such controlling persons, if from and against all Losses arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, prospectus, or form of prospectus, or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent, but only to the extent, that such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information regarding such holder so furnished in writing by such holder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission was relied upon by the Company in preparation of such Registration Statement, prospectus or form of prospectus; provided, that such holder of Registrable Securities shall have not be liable in any such case to the extent that the holder has furnished in writing to the Company within a reasonable period of time prior to the filing of any such Registration Statement or prospectus or amendment or supplement thereto information expressly for use in such Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished copies thereof to the Company, and the Company failed to include such information therein. In no event shall the liability of any holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds (net of payment of all taxes and expenses incurred in connection therewith) received by such holder upon the sale of the Registrable Securities giving rise to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do soindemnification obligation. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party.
(c) If any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall give prompt notice to the party or asserted against any parties from which such indemnity is sought (the “Indemnifying Parties”) of the indemnified Persons commencement of any action, suit, proceeding or investigation or written threat thereof (a “Proceeding”) with respect to which indemnity may be sought against such Indemnified Party seeks indemnification or contribution pursuant hereto; provided, that the Company, such indemnified Person shall promptly failure to so notify the Company and Indemnifying Parties shall not relieve the Company Indemnifying Parties from any obligation or liability except to the extent that the Indemnifying Parties have been prejudiced by such failure. The Indemnifying Parties shall assume have the right, exercisable by giving written notice to an Indemnified Party promptly after the receipt of written notice from such Indemnified Party of such Proceeding, to assume, at the Indemnifying Parties’ expense, the defense thereof. Such indemnified Person of any such Proceeding, with counsel reasonably satisfactory to such Indemnified Party; provided, that an Indemnified Party (if more than one such Indemnified Party is named in any Proceeding) shall have the right to employ separate counsel in any such action Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless such Indemnified Party or parties unless: (i) the employment of Indemnifying Parties agree to pay such counsel shall have been specifically authorized in writing by the Company, fees and expenses; (ii) the Company shall have failed Indemnifying Parties fail promptly to assume the defense and of such Proceeding or fail to employ counsel, counsel reasonably satisfactory to such Indemnified Party or parties; or (iii) the named parties to any such action Proceeding (including any implied impleaded parties) include both the indemnified Person such Indemnified Party or parties and the Company Indemnifying Parties or an Affiliate of the Indemnifying Parties or such Indemnified Parties, and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which such Indemnified Party that are different from or additional to those available to the Company (Indemnifying Parties, in which case case, if such Indemnified Party notifies the Company Indemnifying Parties in writing that it elects to employ separate counsel at the expense of the Indemnifying Parties; the Indemnifying Parties shall not have the right to assume the defense of thereof and such action on behalf counsel shall be at the expense of the indemnified Person)Indemnifying Parties, it being understood, however, that that, unless there exists a conflict among Indemnified Parties, the Company Indemnifying Parties shall not, in connection with any one such action Proceeding or separate but substantially similar or related actions or proceedings 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 (in addition to any together with appropriate local counsel) at any time for all such Indemnified Party. Whether or not such defense is assumed by the indemnified PersonsIndemnifying Parties, such Indemnifying Parties or Indemnified Party shall not be subject to any liability for any settlement made without its or their consent (but such consent shall not be unreasonably withheld). The Indemnifying Parties shall not consent to entry of any judgment or enter into any settlement which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable provides for any settlement of any such action or proceeding effected other than monetary damages without the Company's prior written consent, consent of the Indemnified Party (which consent shall not be unreasonably withheld unreasonablyor delayed) or (y) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release, in form and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent substance satisfactory to the entry of judgment on or otherwise seek to terminate any pending or threatened actionIndemnified Party, claim, litigation or proceeding from all liability in respect of such Proceeding for which such Indemnified Party would be entitled to indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedinghereunder.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(cd) If the indemnification provided for in this Section 2.7 5F is unavailable to an indemnified party under Section 2.7(a) Indemnified Party or (b) (other than by reason of exceptions provided in those Sections) is insufficient to hold such Indemnified Party harmless for any Losses in respect of any losses, claims, damages, liabilities, judgments or expenses referred to thereinwhich this Section 5F would otherwise apply by its terms, then each applicable indemnifying party (in the case of the Holders severally and not jointly)Indemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall have an obligation to contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossesLosses, claims damages, liabilities, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by fault of the Company Indemnifying Party, on the one hand hand, and the Holder such Indemnified Party, on the other hand from sale of Restricted Securitieshand, or (ii) if such 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 Company and such Holder in connection with the actions, statements or omissions which that resulted in such losses, claims, damages, liabilities, judgments or expenses, Losses as well as any other relevant equitable considerations. The relative fault of the Company such Indemnifying Party, on the one hand hand, and of such Holder Indemnified Party, on the other hand, shall be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been taken by, or relates to information supplied by the Company by, such Indemnifying Party or by such Holder Indemnified Party, and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above any Losses shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), include any legal or other fees or expenses reasonably incurred by such party in connection with investigating any Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 5F(a) or defending any action or claim5F(b) was available to such party. The Company and each Holder of Restricted Securities covered by any Registration Statement parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c5F(d) 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 in the immediately preceding paragraphthis Section 5F(d). Notwithstanding the provisions of this Section 2.7(c5F(d), no Holder (and none an Indemnifying Party that is a holder of its related indemnified Persons) Registrable Securities shall not be required to contribute, in the aggregate, contribute any amount in excess of the amount by which the dollar amount of net proceeds received by such Holder upon the sale of the Restricted Securities Indemnifying Party exceeds the amount of any damages which that such Holder Indemnifying Party has otherwise been required to pay by reason reasons of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The indemnity .
(e) Each Securityholder and contribution the Company agree that such Person shall not permit any amendment to the Certificate of Incorporation or the by-laws of the Company that would reduce the scope of the indemnification or limitation of liability provisions contained in this Section 2.7 are in addition to any liability which the indemnifying Person may otherwise have to the indemnified Persons referred to abovetherein.
Appears in 1 contract
Samples: Securityholders Agreement (Universal Hospital Services Inc)
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Article V, the Company agrees to will indemnify and hold harmless each underwriter and each Mezzanine Investor who offers or sells any such Registrable Interests in connection with such registration statement (i) including their respective partners (including partners of partners and stockholders and members of any such partners), and directors, officers, managers, members, employees and agents of any of them (a "SELLING HOLDER"), and each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter Act (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling PersonCONTROLLING PERSON"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (including any investigation, reasonable legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or actions proceeding or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"any claim asserted), as the same are incurred to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act Act, or other federal or state statutory law or regulation, at common law or otherwise, insofar as such Claims losses, claims, damages or liabilities arise out of or are based upon, or are caused by on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any Registration Statement related preliminary or Prospectus (definitive prospectus, or any amendment or supplement theretoto such registration statement or prospectus), or (ii) any omission or alleged omission to state therein in such document a material fact required to be stated therein in it or necessary to make the statements therein in it not misleading, or a (iii) any violation by the Company of the Securities Act or Act, any state securities law, or "blue sky" laws or any rule or regulation promulgated under thereunder in connection with such registration; provided, however, that the Securities Act Company will not be liable to the extent that such loss, claim, damage, expense or any state securities law, liability arises from and is based on an untrue statement or any other law applicable omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company relating to any by such Selling Holder or Controlling Person expressly for use in such registration statement or qualification, except insofar as is due to the failure of such losses, claims, damages, liabilities, judgments Selling Holder or expenses Controlling Person to deliver a copy of the prospectus or any supplements thereto a reasonable period of time after the Company has furnished such indemnified Person; Selling Holder or Controlling Person with a sufficient number of copies of the same or by the delivery of prospectuses by such Selling Holder or Controlling Person after the Company notified such Selling Holder or Controlling Person in writing to discontinue delivery of prospectuses. With respect (xi) are caused by any to such untrue statement or omission or alleged untrue statement or omission that is based upon in the information relating to such indemnified Person furnished in writing to the Company by such Selling Holder or on behalf of any of such indemnified Controlling Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that in such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue registration statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the failure of any Selling Holder of Controlling Person to refrain from delivering any prospectus or supplements thereto a reasonable period of time following notice from the Company to discontinue delivery such prospectus or supplements, such Selling Holder will indemnify and hold harmless each underwriter, the Company (including its directors, officers, employees, agents and Controlling Persons), and each other Selling Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees, agents and Controlling Person of any of them), from and against any and all losses, claims, damages, expenses and liabilities, joint or several, to which they, or any of them, may become subject under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, at common law or otherwise to the same extent provided in the immediately preceding sentence. In no event, however, shall the liability of a Selling Holder or Controlling Person for indemnification under this Section 5.6(a) in its capacity as such exceed the gross proceeds, if any, net proceeds (before deducting expenses) received by such Purchaser Selling Holder from the its sale or other disposition of his or its Restricted Securities covered by Registrable Interests under such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a)registration statement.
(cb) If the indemnification provided for in this Section 2.7 5.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) Indemnified Party in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)Indemnifying Party under this Section 5.6, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand other Selling Holders and the Holder on underwriters, if any, from the other hand from sale offering of Restricted Securities, the Registrable Interests or (ii) if such the allocation provided by clause (i) above is not permitted by applicable lawApplicable 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 Company Company, the other Selling Holders and such Holder the underwriters, if any, in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Holders and the underwriters, if any, shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, if any, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Interests. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters, if any, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement the Selling Holders agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c5.6(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Selling Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this Section 5.6(b) in excess of the amount by which the dollar amount of net proceeds (before deducting expenses) received by such Selling Holder upon the from its sale of the Restricted Securities exceeds the amount of any damages which Registrable Interests under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. The indemnity and contribution provisions contained in .
(c) As promptly as is reasonably practicable after receipt by a party seeking indemnification pursuant to this Section 2.7 5.6 (an "INDEMNIFIED PARTY") of written notice of any investigation, claim, proceeding or other action in respect of which indemnification is being sought (each, a "CLAIM"), the Indemnified Party promptly shall notify the party against whom indemnification pursuant to this Section 5.6 is being sought (the "INDEMNIFYING PARTY") of the commencement thereof; but the omission to so notify the Indemnifying Party shall not relieve it from any liability hereunder, except to the extent that the Indemnifying Party is materially prejudiced by reason of such failure. In connection with any Claim, the Indemnifying Party shall be entitled to assume the defense thereof. Notwithstanding the assumption of the defense of any Claim by the Indemnifying Party, the Indemnified Party shall have the right to employ separate legal counsel and to participate in the defense of such Claim, and the Indemnifying Party shall bear the reasonable fees, out-of-pocket costs and expenses of such separate legal counsel to the Indemnified Party if (and only if): (x) the Indemnifying Party shall have agreed to pay such fees, costs and expenses, (y) the Indemnified Party shall reasonably have concluded that representation by the same legal counsel would not be appropriate due to (i) actual or potentially differing interests between such parties in the conduct of the defense of such Claim, or (ii) legal defenses that may be available to the Indemnified Party that are in addition to any liability which the indemnifying Person may otherwise have or disparate from those available to the indemnified Persons referred Indemnifying Party, or (z) the Indemnifying Party shall have failed to employ legal counsel reasonably satisfactory to the Indemnified Party and take action to defend such claim within 30 days after notice of the commencement of such Claim or the Indemnifying Party shall, in the reasonable judgment of the Indemnified Party, have ceased to conduct a diligent defense of such claim. If the Indemnified Party employs separate legal counsel in circumstances other than as described in clauses (x), (y) or (z) above, the fees, costs and expenses of such legal counsel shall be borne exclusively by the Indemnified Party. Except as provided above, the Indemnifying Party shall not, in connection with any Claim in the same jurisdiction, be liable for the fees and expenses of more than one firm of counsel for the Indemnified Party (together with appropriate local counsel). No Indemnifying Party shall, without the prior written consent of the Indemnified Party, settle or compromise any Claim or consent to the entry of any judgment with respect thereto, unless such settlement, compromise or consent (i) includes an unconditional release of each Indemnifying Party from all liabilities with respect to such Claim or judgment and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party.
(d) The indemnification and contribution provided for in this Section 5.6 will remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Parties or any officer, director, employee, agent or Controlling Person of the Indemnified Parties.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees shall, and shall cause each of its Subsidiaries to, jointly and severally, without limitation as to indemnify time, indemnify, defend and hold harmless (i) harmless, to the full extent permitted by law, each Holder covered by any Registration Statementholder of Registrable Securities, (ii) the partners, members, officers, directors, agents, representatives and employees of each other of them, each Person who participates as an underwriter in the offering or sale of controls each such securities, (iii) each Person, if any, who controls holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective partners, members, officers, directors, partners, employeesagents, representatives and agents employees of each such controlling person and any such Holder financial or underwriter or any controlling Person investment adviser (any Person referred to in clause (i)each, (ii), (iii) or (iv) may hereinafter be referred to as an a "indemnified Covered Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expenses, joint or several (or actions or proceedings, proceedings (whether commenced or threatened), in respect thereofcosts (including costs of preparation and attorneys' fees) and expenses (including expenses of investigation) (collectively, "ClaimsLosses"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwiseas incurred, insofar as such Claims arise arising out of or are based upon, or are caused by upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement Statement, prospectus or Prospectus (form of prospectus or in any amendment or supplement thereto)supplements thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable except to the Company relating to any such registration extent that the same arise out of or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by such Covered Person or on behalf the related holder of any of such indemnified Person Registrable Securities expressly for use therein; therein or (yii) with respect any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration; provided that the Company shall not be liable to any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls such underwriters within the meaning of the Securities Act to the extent that any such Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary Prospectus, result from prospectus if (i) such Person failed to send or deliver a copy of the fact that such Holder sold Securities to a Person to whom there was not sent or given, at prospectus with or prior to the delivery of written confirmation of the sale by such salePerson to the Person asserting the claim from which such Losses arise, a copy of (ii) the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission; or , and (ziii) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company has complied with its obligations under Section 3.4(c). Each indemnity and reimbursement of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity costs and expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such Covered Person. If the public offering pursuant to any indemnified Person and shall survive Registration Statement provided for under this ARTICLE III is made through underwriters, no action or failure to act on the transfer part of such securities underwriters (whether or not such underwriter is an Affiliate of any holder of Registrable Securities) shall affect the obligations of the Company to indemnify any holder of Registrable Securities or any other Person pursuant to the preceding sentence.
(b) In connection with any Registration Statement in which a holder of Registrable Securities is participating, such holder, or an authorized officer of such holder, shall furnish to the Company in writing such information as the Company reasonably requests for use in connection with any Registration Statement or prospectus and such holder of Registrable Securities agrees, severally and not jointly, to indemnify, defend and hold harmless to the full extent permitted by law, the Company, its directors, officers, agents, representatives and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the partners, members, directors, officers, agents, representatives or employees of such controlling persons, from and against all Losses arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, prospectus, or form of prospectus, or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent, but only to the extent, that such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information so furnished in writing by such Holderholder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission was relied upon by the Company in preparation of such Registration Statement, prospectus or form of prospectus; provided that such holder of Registrable Securities shall not be liable in any such case to the extent that the holder has furnished in writing to the Company within a reasonable period of time prior to the filing of any such Registration Statement or prospectus or amendment or supplement thereto information expressly for use in such Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished to the Company, and the Company failed to include such information therein. In case no event shall the liability of any action holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds (net of payment of all taxes and expenses incurred in connection therewith) received by such holder upon the sale of the Registrable Securities giving rise to such indemnification obligation.
(c) If any Person shall be brought entitled to indemnity hereunder (an "Indemnified Party"), such Indemnified Party shall give prompt notice to the party or asserted against any parties from which such indemnity is sought (the "Indemnifying Parties") of the indemnified Persons commencement of any action, suit, proceeding or investigation or written threat thereof (a "Proceeding") with respect to which indemnity may be sought against such Indemnified Party seeks indemnification or contribution pursuant hereto; provided that the Company, such indemnified Person shall promptly failure to so notify the Company and Indemnifying Parties shall not relieve the Company Indemnifying Parties from any obligation or liability except to the extent that the Indemnifying Parties have been prejudiced by such failure. The Indemnifying Parties shall assume have the right, exercisable by giving written notice to an Indemnified Party promptly after the receipt of written notice from such Indemnified Party of such Proceeding, to assume, at the Indemnifying Parties' expense, the defense thereof. Such indemnified Person of any such Proceeding, with counsel reasonably satisfactory to such Indemnified Party; provided that an Indemnified Party or Parties (if more than one such Indemnified Party is named in any Proceeding) shall have the right to employ separate counsel in any such action Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person such Indemnified Party or Parties unless (i) the employment of Indemnifying Parties agree to pay such counsel shall have been specifically authorized in writing by the Companyfees and expenses, (ii) the Company shall have failed Indemnifying Parties fail promptly to assume the defense and of such Proceeding or fail to employ counselcounsel reasonably satisfactory to such Indemnified Party or Parties, or (iii) the named parties to any such action Proceeding (including any implied impleaded parties) include both the indemnified Person such Indemnified Party or Parties and the Company Indemnifying Parties or an Affiliate of the Indemnifying Parties or such Indemnified Parties, and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which such Indemnified Party or Parties that are different from or additional to those available to the Company (Indemnifying Parties, in which case case, if such Indemnified Party or Parties notifies the Company Indemnifying Parties in writing that it elects to employ separate counsel at the expense of the Indemnifying Parties, the Indemnifying Parties shall not have the right to assume the defense of thereof and such action on behalf counsel shall be at the expense of the indemnified Person)Indemnifying Parties, it being understood, however, that that, unless there exists a conflict among Indemnified Parties, the Company Indemnifying Parties shall not, in connection with any one such action Proceeding or separate but substantially similar or related actions or proceedings 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 (in addition to any together with appropriate local counsel) at any time for all such Indemnified Party or Parties. Whether or not such defense is assumed by the indemnified PersonsIndemnifying Parties, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company Indemnifying Parties or Indemnified Party or Parties shall not be liable subject to any liability for any settlement made without its or their consent (but such consent shall not be unreasonably withheld). The Indemnifying Parties shall not consent to entry of any such action judgment or proceeding effected enter into any settlement which (i) provides for other than monetary damages without the Company's prior written consent, consent of the Indemnified Party or Parties (which consent shall not be unreasonably withheld unreasonablyor delayed) or (ii) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party or Parties of a release, in form and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent substance satisfactory to the entry of judgment on Indemnified Party or otherwise seek to terminate any pending or threatened actionParties, claim, litigation or proceeding from all liability in respect of such Proceeding for which such Indemnified Party would be entitled to indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedinghereunder.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(cd) If the indemnification provided for in this Section 2.7 3.6 is unavailable to an indemnified party under Section 2.7(a) Indemnified Party or (b) (other than by reason of exceptions provided in those Sections) is insufficient to hold such Indemnified Party harmless for any Losses in respect of any losses, claims, damages, liabilities, judgments or expenses referred to thereinwhich this Section 3.6 would otherwise apply by its terms, then each applicable indemnifying party (in the case of the Holders severally and not jointly)Indemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall have a joint and several obligation to contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossesLosses, claims damages, liabilities, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by fault of the Company Indemnifying Party, on the one hand hand, and the Holder such Indemnified Party, on the other hand from sale of Restricted Securitieshand, or (ii) if such 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 Company and such Holder in connection with the actions, statements or omissions which that resulted in such losses, claims, damages, liabilities, judgments or expenses, Losses as well as any other relevant equitable considerations. The relative fault of the Company such Indemnifying Party, on the one hand hand, and of such Holder Indemnified Party, on the other hand, shall be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been taken by, or relates to information supplied by the Company by, such Indemnifying Party or by such Holder Indemnified Party, and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above any Losses shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), include any legal or other fees or expenses reasonably incurred by such party in connection with investigating any Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 3.6(a) or defending any action or claim3.6(b) was available to such party. The Company and each Holder of Restricted Securities covered by any Registration Statement parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c3.6(d) 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 in the immediately preceding paragraphthis Section 3.6(d). Notwithstanding the provisions of this Section 2.7(c3.6(d), no Holder (and none an Indemnifying Party that is a holder of its related indemnified Persons) Registrable Securities shall not be required to contribute, in the aggregate, contribute any amount in excess of the amount by which the dollar amount of net proceeds received by such Holder upon the sale of the Restricted Securities Indemnifying Party exceeds the amount of any damages which that such Holder Indemnifying Party has otherwise been required to pay by reason reasons of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution provisions contained in this Section 2.7 are in addition to any liability which the indemnifying Person may otherwise have to the indemnified Persons referred to above.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
(ai) The Company agrees to To the extent permitted by applicable law, Akorn shall indemnify and hold harmless each Holder, and the partners, members, officers, directors, employees, and stockholders of each such Holder; legal counsel and accountants for each such Holder; any underwriter (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter defined in the offering or sale of Securities Act) for each such securities, (iii) Holder; and each Person, if any, who controls (such Holder or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expenses, liabilities and expenses (joint or several (or actions or proceedingsseveral), whether commenced or threatened, in respect thereof) including reasonable attorney’s fees and disbursements and reasonable expenses of investigation (collectively, "Claims"“Losses”), incurred by such Person pursuant to any actual or threatened action, suit, proceeding or investigation, or to which such indemnified Person any of the foregoing Persons may otherwise become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state laws, but only insofar as such Claims Losses arise out of or are based uponupon any of the following statements or omissions (collectively, or are caused by a “Violation”):
(1) any untrue statement or alleged untrue statement of a material fact contained in the registration statement, including any Registration Statement preliminary Prospectus or final Prospectus (or any amendment or supplement thereto)contained therein, or any amendments or supplements thereto; or
(2) the omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; provided, or a violation however, that the indemnification required by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable this Section 9(f)(i) shall not apply to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses amounts paid in settlement of any such indemnified Person; Loss if such settlement is effected without the consent of Akorn (x) are caused by which consent shall not be unreasonably withheld), nor shall Akorn be liable in any such untrue statement case for any such Loss to the extent that it arises out of or omission or alleged untrue statement or omission that is based upon a Violation which occurs in reliance upon and in conformity with information relating to such indemnified Person furnished in writing to the Company Akorn by or on behalf of a Holder or any of such indemnified Person underwriter expressly for use thereinin connection with such registration; (yand provided, further, that any indemnification required by this Section 9(f)(i) with respect 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, or an omission or alleged omission to state a material fact, included in or omitted from any preliminary Prospectusprospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, result from or such omission or alleged omission, and a copy of the fact that such Holder sold Securities to a Person to whom there was final prospectus has not been sent or given, given by the Holder or any underwriter to the Person alleging damage at or prior to the written confirmation of sale to such salePerson; and provided, a copy further, that this indemnity shall not apply to the extent that any such Loss is based on an offer or Transfer of Registrable Securities during any period which Akorn has notified the Holder that such offers and Transfers must cease under the Agreement, including under Section 9(b), Section 9(c)(ii) or Section 9(c)(v).
(ii) To the extent permitted by applicable law, the Holders (severally and not jointly) shall indemnify and hold harmless Akorn, each of the Prospectusdirectors of Akorn, as amended or supplementedeach of the officers of Akorn who shall have signed the Resale Registration Statement, each Person, if any, who controls Akorn within the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result meaning of the use Securities Act, and each officer, director, partner, and employee of such controlling Person, against any and all Losses incurred by an indemnified such Person of pursuant to any Prospectus whenactual or threatened action, upon receipt of a notice from the Company suit, proceeding or investigation, or to which any of the existence of any fact of foregoing Persons may otherwise become subject under the kind described in Section 2.3(b)(iv)Securities Act, the indemnified Person Exchange Act or other federal or state laws, but only insofar as such Losses arise out of or are based upon any Violation, in each case to the related Holder was not permitted to do so. Such indemnity shall remain extent that such Violation arises out of or is based upon information furnished in full force and effect regardless of any investigation made writing by or on behalf of a Holder expressly for use in connection with such registration, or upon the Holder’s failure to properly and timely deliver an “official” Prospectus, or upon the Holder’s use of a written or oral prospectus other than the “official” Prospectus; provided, however, that any indemnified Person and indemnification required by this Section 9(f)(ii) shall survive not apply to amounts paid in settlement of any such Loss if such settlement is effected without the transfer of such securities by such Holder. In case any action shall be brought or asserted against any consent of the Holders (which consent shall not be unreasonably withheld) and in no event shall the amount of any indemnity obligation under this Section 9(f)(ii) exceed the gross proceeds from the applicable offering received by the Holders.
(iii) Promptly after receipt by an indemnified Persons with respect to party under this Section 9(f) of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which indemnity such indemnified party may be sought against the Companymake a claim under this Section 9(f), such indemnified Person party shall promptly notify deliver to the Company indemnifying party a written notice thereof and the Company indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereofthereof with counsel reasonably satisfactory to the indemnified party; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and disbursements and expenses (in each case, to the extent reasonable) to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. Such The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified Person party under this Section 9(f) to the extent, but only to the extent, of such prejudice but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 9(f). Any such indemnified party shall have the right to employ separate counsel in any such action action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense expenses of the such indemnified Person party unless (i) the employment of indemnifying party has agreed to pay such counsel shall have been specifically authorized in writing by the Company, fees and expenses or (ii) the Company indemnifying party shall have failed to promptly assume the defense and employ counselof such action, claim or proceeding or (iii) the named parties to any such action action, claim or proceeding (including any implied impleaded parties) include both the such indemnified Person party and the Company indemnifying party, and the such indemnified Person party shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which that are different from or additional in addition to those available to the Company indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party could not faithfully represent the indemnified party (in which case case, if such indemnified party notifies the Company indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action action, claim or proceeding on behalf of the such indemnified Person)party, it being understood, however, that the Company indemnifying party shall not, in connection with any one such action action, claim or proceeding or separate but substantially similar or related actions 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 (in addition to any together with appropriate local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto)parties, unless in the reasonable judgment of such settlement, compromise, consent or termination includes an unconditional release indemnified party a conflict of each interest may exist between such indemnified Person from all liability arising out party and any other of such indemnified parties with respect to such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally in which event the indemnifying party shall be obligated to pay the reasonable fees and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf expenses of such Holder expressly for use in any Registration Statement additional counsel or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(acounsels).
(civ) If the indemnification provided for in required by this Section 2.7 9(f) from the indemnifying party is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) hereunder in respect of any losses, claims, damages, liabilities, judgments or expenses Losses referred to therein, then each applicable in this Section 9(f):
(1) the indemnifying party (in the case of the Holders severally and not jointly)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, judgments or expenses (i) Losses in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 Company indemnifying party and such Holder indemnified parties in connection with the statements or omissions which actions that resulted in such losses, claims, damages, liabilities, judgments or expensesLosses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand such indemnifying party and of such Holder on the other indemnified parties shall be determined by reference to, among other things, whether the untrue any Violation has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company by, such indemnifying party or by such Holder indemnified parties, and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionViolation. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments and expenses Losses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a9(f)(i), 9(f)(ii) and 9(f)(iii), any legal or other fees or expenses reasonably incurred by such party in connection with investigating any investigation or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement proceeding;
(2) the parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c11(f)(iv) 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 does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c9(f)(iv)(1), no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f11(e) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. .
(v) The indemnity obligations of Akorn and contribution provisions contained in the Holders under this Section 2.7 are in addition to 9(f) shall survive the completion of any liability which the indemnifying Person may otherwise have offering of Registrable Securities pursuant to the indemnified Persons referred to aboveregistration statement under this Agreement, and otherwise.
Appears in 1 contract
Samples: Modification, Warrant and Investor Rights Agreement (Akorn Inc)
Indemnification; Contribution. (a) The Incident to any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company agrees to will indemnify and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), and directors, officers, employees, representatives and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a "Controlling Person")), 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, as the same are incurred), to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus) or (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in it not misleading; provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder or Controlling Person expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder will indemnify and hold harmless each underwriter, the Company (including its directors, officers, employees, representatives and agents), each other Person who participates as an underwriter in the offering or sale Holder (including its partners (including partners of partners and stockholders of such securitiespartners) and directors, (iii) officers, employees, representatives and agents of any of them, and each Person, if any, person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar as such Claims arise out of at common law or are based uponotherwise to the same extent provided in the immediately preceding sentence. In no event, or are caused by any untrue statement or alleged untrue statement however, shall the liability of a material fact contained in any Registration Statement or Prospectus Selling Holder for indemnification under this Section 5(a) exceed the lesser of (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any i) such registration or qualification, except insofar as selling Holder's pro rata share for such losses, claims, damages, liabilities, judgments expenses and liabilities or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated net proceeds received by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement Selling Holder from its sale of any Registrable Securities under such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingregistration statement.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand other Selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, the other Selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations; provided, however, that in the event of a registration statement filed in response to a demand under Section 3(a) and in which the Company does not register any shares of capital stock, the proportion of contribution by the Company, the other Selling Holders and the underwriters shall in all cases be governed by clause (ii) above. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesSelling Holders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c5(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Selling Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this Section 5(b) in excess of the amount by which lesser of (i) such selling Holder's pro rata share for such losses, claims, damages, expenses and liabilities or (ii) the dollar amount of net proceeds received by such Selling Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(c) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 are in addition 5 shall be deemed to any liability which the indemnifying Person may otherwise have include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified Persons referred to aboveparty in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in this Section 5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. No indemnifying party, in the defense of any such claim or litigation, shall enter into a consent of entry of any judgment or enter into a settlement without the consent of the indemnified party, which consent will not be unreasonably withheld.
Appears in 1 contract
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Article V, the Company agrees to will indemnify and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), stockholders, directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934 (the "Exchange Act") (a "Controlling Person")), 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, as the same are incurred), to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading, or sale of such securities, (iii) any violation by the Company of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder or Controlling Person expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder will indemnify and hold harmless each Personunderwriter, if anythe Company (including its directors, officers, employees and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners), stockholders, directors, officers, employees and agents of any of them, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar as such Claims arise out of at common law or are based uponotherwise to the same extent provided in the immediately preceding sentence. In no event, or are caused by any untrue statement or alleged untrue statement however, shall the liability of a material fact contained in any Registration Statement or Prospectus Selling Holder for indemnification under this Section 5.5(a) exceed the lesser of (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company i) that proportion of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as total of such losses, claims, damages, liabilities, judgments damages or expenses of any such liabilities indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing against equal to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy proportion of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to total securities sold under such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue registration statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities which is being sold by such Holder. In case any action shall be brought Selling Holder or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated net proceeds received by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement Selling Holder from its sale of any Registrable Securities under such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingregistration statement.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 5.5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 5.5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand other Selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, the other Selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations; provided, however, that in the event of a registration statement filed in response to a demand under Section 5.2 and in which the Company does not register any shares of capital stock, the proportion of contribution by the Company, the other Selling Holders and the underwriters shall in all cases be governed by clause (ii) above. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesSelling Holders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c5.5(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Selling Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this Section 5.5(b) in excess of the amount lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Registrable Securities sold under such registration statement which are being sold by which such Selling Holder or (ii) the dollar amount of net proceeds received by such Selling Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation.
(c) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and liabilities referred to in this Section5.5 shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnity indemnification and contribution provisions contained provided for in this Section 2.7 are 5.5 will remain in addition to full force and effect regardless of any liability which the indemnifying Person may otherwise have to investigation made by or on behalf of the indemnified Persons referred to aboveparties or any officer, director, employee, agent or controlling person of the indemnified parties.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless each Initial Purchaser, each Holder, each person (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each a “Controlling Person”), if any, who controls (any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), Act and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter Initial Purchaser, the Holders or any controlling Controlling Person (any Person referred to in clause (ieach, an “Indemnified Party”), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all lossesloss, claimsdamage, damagesexpense, liabilitiesliability, judgments claim or expenses, joint or several (or any actions or proceedings, whether commenced or threatened, in respect thereofthereof (including the reasonable cost of investigation) (collectively, "Claims"), to which such indemnified Person Indemnified Party may incur or become subject to under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwise, insofar as such Claims arise loss, damage, expense, liability, claim or action arises out of or are is based upon, or are caused by upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus (Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto)thereto or in any preliminary prospectus, or 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 violation by 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 such statements were made, not misleading, and the Company of shall reimburse, as incurred, the Securities Act Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any state securities lawsuch loss, damage, expense, liability, claim or any rule or regulation promulgated under the Securities Act or any state securities lawaction in respect thereof; provided, or any other law applicable to however, that the Company relating shall not be required to provide any indemnification pursuant to this Section 6(a) in any such registration or qualification, except case insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by loss, damage, expense, liability, claim or action arises out of or is based upon any such untrue statement or omission or alleged untrue statement or omission that is based upon of a material fact contained in, or omitted from, and in conformity with information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person an Initial Purchaser or a Holder to the Company expressly for use therein; (y) with respect in, any Shelf Registration Statement or any Prospectus, including, without limitation, information provided to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to by such Holder in accordance with this Agreement a Notice and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omissionQuestionnaire; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understoodprovided further, however, that the Company shall not, in connection with such action or similar or related actions or proceedings arising out of the same general allegations or circumstances, this indemnity agreement will be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all liability which the indemnified PersonsCompany may otherwise have to such Indemnified Party; provided further, which firm however, that no Initial Purchaser or Holder shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory entitled to this indemnity to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonablyextent, and only to the Company agrees to indemnify and hold harmless any indemnified Person from and against any extent, such loss, claim, damage, expense, liability, judgment claim or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising arises out of a disposition, pursuant to a Shelf Registration Statement, of Registrable Securities by such actionInitial Purchaser or Holder, claim litigation as the case may be, during a Suspension Period, provided such Initial Purchaser or proceedingHolder, as the case may be, received, prior to such disposition, a Suspension Notice with respect to such Suspension Period.
(b) Each Holder of Restricted Securities covered by any Registration Statement agreesHolder, severally and not jointly, agrees to indemnify indemnify, defend and hold harmless the Company and Company, its directors, officers officers, employees, representatives and agents and any Person controlling (person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (A) the Companyany untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i“Holder Information”) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information, which material fact was not contained in such Holder Information, and which material fact was either required to be stated in any Shelf Registration Statement or Prospectus, or any amendment or supplement thereto, or necessary to make such Holder Information not misleading; (iiB) a sale, by such Holder, pursuant to a Shelf Registration Statement, of Registrable Securities during a Suspension Period, provided that the Company shall have theretofore provided such Holder with a Suspension Notice with respect to such Suspension Period; or (C) a public sale of Registrable Securities by such Holder without delivery, if required by the Securities Act, of the most recent applicable Prospectus provided to such Holder by the Company pursuant to Section 3(h) or Section 2(d)(i)(C); and, subject to the extent of limitation set forth in the gross proceedsimmediately preceding clause, if anyeach Holder shall reimburse, received by such Purchaser from as incurred, the sale Company for any legal or other disposition of his or its Restricted Securities covered expenses reasonably incurred by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. 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, pursuant to the Shelf Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statementpursuant to either Section 6(a) or Section 6(b), such Holder person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise, except to the extent such Indemnifying Party is materially prejudiced by such omission. Such Indemnified Party shall have the rights right to employ its own counsel in any such case, but the fees and duties given expenses of such counsel shall be at the Company expense of such Indemnified Party unless the employment of such counsel shall have been authorized in Section 2.7(awriting by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (except in which case such Indemnifying Party shall not have the right to direct that portion of the Holder defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of 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 required liable for the 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 assume such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the defense thereof)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 Company or its directors or officers or such controlling Person 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 counsel as contemplated by the rights second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement or shall not have, prior to the date of such settlement, reimbursed such Indemnified Party for the portion of such requested amount as the Indemnifying Party believes in good faith to be reasonable (provided such Indemnifying Party has theretofore provided written notice to such Indemnified Party that the Indemnifying Party disputes in good faith the reasonableness of the unpaid balance) and duties (iii) such Indemnified Party shall have given such Indemnifying Party at least thirty (30) days’ prior notice of its intention to each Holder settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement 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 Section 2.7(a)such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such Indemnified Party.
(cd) If the indemnification provided for in this Section 2.7 6 is unavailable to an indemnified party Indemnified Party under Section 2.7(a6(a) or (b) (other than by reason of exceptions provided in those Sections) Section 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expenses actions referred to therein (other than as a result of the limitations on indemnification specified therein), then each applicable indemnifying party (in the case of the Holders severally and not jointly)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, judgments claims or expenses actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and by the Holder Holders or the Initial Purchasers, on the other hand hand, from sale the offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, on the one hand, and such Holder of the Holders or the Initial Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expensesactions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of such Holder the Holders or the Initial Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder the Holders or the Initial Purchasers and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments expenses, liabilities, claims and expenses actions referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. Proceeding.
(e) The Company Company, the Holders and each Holder of Restricted Securities covered by any Registration Statement the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c) 6 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 does not take into account of the equitable considerations referred to in the immediately preceding paragraphSection 6(d) above. Notwithstanding the provisions of this Section 2.7(c)6, no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount in excess of the amount by which the dollar amount of proceeds received total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder upon were offered to the sale of the Restricted Securities public exceeds the amount of any damages which such Holder 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 misrepresentations 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. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 2.7 are 6 shall remain operative and in addition to full force and effect regardless of (i) any liability which termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnifying Person may otherwise have to Initial Purchasers or any person controlling any Holder or Initial Purchaser, or the indemnified Persons referred to aboveCompany, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Article V, the Company agrees to will indemnify and hold harmless each underwriter and each Mezzanine Investor who offers or sells any such Registrable Interests in connection with such registration statement (i) including their respective partners (including partners of partners and stockholders and members of any such partners), and directors, officers, managers, members, employees and agents of any of them (a “Selling Holder”), and each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter Act (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling “Controlling Person"”), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (including any investigation, reasonable legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or actions proceeding or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"any claim asserted), as the same are incurred to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act Act, or other federal or state statutory law or regulation, at common law or otherwise, insofar as such Claims losses, claims, damages or liabilities arise out of or are based upon, or are caused by on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any Registration Statement related preliminary or Prospectus (definitive prospectus, or any amendment or supplement theretoto such registration statement or prospectus), or (ii) any omission or alleged omission to state therein in such document a material fact required to be stated therein in it or necessary to make the statements therein in it not misleading, or a (iii) any violation by the Company of the Securities Act or Act, any state securities law, or “blue sky” laws or any rule or regulation promulgated under thereunder in connection with such registration; provided, however, that the Securities Act Company will not be liable to the extent that such loss, claim, damage, expense or any state securities law, liability arises from and is based on an untrue statement or any other law applicable omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company relating to any by such Selling Holder or Controlling Person expressly for use in such registration statement or qualification, except insofar as is due to the failure of such losses, claims, damages, liabilities, judgments Selling Holder or expenses Controlling Person to deliver a copy of the prospectus or any supplements thereto a reasonable period of time after the Company has furnished such indemnified Person; Selling Holder or Controlling Person with a sufficient number of copies of the same or by the delivery of prospectuses by such Selling Holder or Controlling Person after the Company notified such Selling Holder or Controlling Person in writing to discontinue delivery of prospectuses. With respect (xi) are caused by any to such untrue statement or omission or alleged untrue statement or omission that is based upon in the information relating to such indemnified Person furnished in writing to the Company by such Selling Holder or on behalf of any of such indemnified Controlling Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that in such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue registration statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the failure of any Selling Holder of Controlling Person to refrain from delivering any prospectus or supplements thereto a reasonable period of time following notice from the Company to discontinue delivery such prospectus or supplements, such Selling Holder will indemnify and hold harmless each underwriter, the Company (including its directors, officers, employees, agents and Controlling Persons), and each other Selling Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees, agents and Controlling Person of any of them), from and against any and all losses, claims, damages, expenses and liabilities, joint or several, to which they, or any of them, may become subject under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, at common law or otherwise to the same extent provided in the immediately preceding sentence. In no event, however, shall the liability of a Selling Holder or Controlling Person for indemnification under this Section 5.6(a) in its capacity as such exceed the gross proceeds, if any, net proceeds (before deducting expenses) received by such Purchaser Selling Holder from the its sale or other disposition of his or its Restricted Securities covered by Registrable Interests under such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a)registration statement.
(cb) If the indemnification provided for in this Section 2.7 5.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) Indemnified Party in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)Indemnifying Party under this Section 5.6, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand other Selling Holders and the Holder on underwriters, if any, from the other hand from sale offering of Restricted Securities, the Registrable Interests or (ii) if such the allocation provided by clause (i) above is not permitted by applicable lawApplicable 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 Company Company, the other Selling Holders and such Holder the underwriters, if any, in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Holders and the underwriters, if any, shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, if any, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Interests. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters, if any, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement the Selling Holders agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c5.6(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Selling Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this Section 5.6(b) in excess of the amount by which the dollar amount of net proceeds (before deducting expenses) received by such Selling Holder upon the from its sale of the Restricted Securities exceeds the amount of any damages which Registrable Interests under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. The indemnity and contribution provisions contained in .
(c) As promptly as is reasonably practicable after receipt by a party seeking indemnification pursuant to this Section 2.7 5.6 (an “Indemnified Party”) of written notice of any investigation, claim, proceeding or other action in respect of which indemnification is being sought (each, a “Claim”), the Indemnified Party promptly shall notify the party against whom indemnification pursuant to this Section 5.6 is being sought (the “Indemnifying Party”) of the commencement thereof; but the omission to so notify the Indemnifying Party shall not relieve it from any liability hereunder, except to the extent that the Indemnifying Party is materially prejudiced by reason of such failure. In connection with any Claim, the Indemnifying Party shall be entitled to assume the defense thereof. Notwithstanding the assumption of the defense of any Claim by the Indemnifying Party, the Indemnified Party shall have the right to employ separate legal counsel and to participate in the defense of such Claim, and the Indemnifying Party shall bear the reasonable fees, out-of-pocket costs and expenses of such separate legal counsel to the Indemnified Party if (and only if): (x) the Indemnifying Party shall have agreed to pay such fees, costs and expenses, (y) the Indemnified Party shall reasonably have concluded that representation by the same legal counsel would not be appropriate due to (i) actual or potentially differing interests between such parties in the conduct of the defense of such Claim, or (ii) legal defenses that may be available to the Indemnified Party that are in addition to any liability which the indemnifying Person may otherwise have or disparate from those available to the indemnified Persons referred Indemnifying Party, or (z) the Indemnifying Party shall have failed to employ legal counsel reasonably satisfactory to the Indemnified Party and take action to defend such claim within 30 days after notice of the commencement of such Claim or the Indemnifying Party shall, in the reasonable judgment of the Indemnified Party, have ceased to conduct a diligent defense of such claim. If the Indemnified Party employs separate legal counsel in circumstances other than as described in clauses (x), (y) or (z) above, the fees, costs and expenses of such legal counsel shall be borne exclusively by the Indemnified Party. Except as provided above, the Indemnifying Party shall not, in connection with any Claim in the same jurisdiction, be liable for the fees and expenses of more than one firm of counsel for the Indemnified Party (together with appropriate local counsel). No Indemnifying Party shall, without the prior written consent of the Indemnified Party, settle or compromise any Claim or consent to the entry of any judgment with respect thereto, unless such settlement, compromise or consent (i) includes an unconditional release of each Indemnifying Party from all liabilities with respect to such Claim or judgment and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party.
(d) The indemnification and contribution provided for in this Section 5.6 will remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Parties or any officer, director, employee, agent or Controlling Person of the Indemnified Parties.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees shall, and shall cause each of its Subsidiaries to, jointly and severally, without limitation as to indemnify time, indemnify, defend and hold harmless (i) harmless, to the full extent permitted by Law, each Holder covered by any Registration Statementholder of Registrable Securities, (ii) the partners, members, officers, directors, agents and employees of each other of them, each Person who participates as an underwriter in the offering or sale of controls each such securities, (iii) each Person, if any, who controls holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective partners, members, officers, directors, partnersagents and employees of each such controlling person and any financial or investment adviser (each, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified a “Covered Person"”), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expenses, joint or several (or actions or proceedings, proceedings (whether commenced or threatened), in respect thereofcosts (including, without limitation, costs of preparation and attorneys’ fees) and expenses (including expenses of investigation) (collectively, "Claims"“Losses”), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwiseas incurred, insofar as such Claims arise arising out of or are based upon, or are caused by upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement Statement, prospectus or Prospectus (form of prospectus or in any amendment or supplement thereto)supplements thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable except to the Company relating to any such registration extent that the same arise out of or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by such Covered Person or the related holder of Registrable Securities expressly for use therein or (ii) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration; provided, that the Company shall not be liable to any Person who participates as an underwriter (other than solely due to such Person’s status as an control person of the Company) in the offering or sale of Registrable Securities or any other Person, if any, who controls such underwriters within the meaning of the Securities Act to the extent that any such Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus if (A) such Person failed to send or deliver a copy of the prospectus with or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim from which such Losses arise, (B) the prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission and (C) the Company has complied with its obligations under Section 3D(c). Each indemnity and reimbursement of costs and expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such Covered Person. If the Public Offering pursuant to any Registration Statement provided for under this Section 3 is made through underwriters, (x) no action or failure to act on the part of such indemnified underwriters (whether or not such underwriter is an Affiliate of any holder of Registrable Securities) shall affect the obligations of the Company to indemnify any holder of Registrable Securities or any other Person expressly for use therein; pursuant to the preceding sentence and (y) the Company agrees to enter into an underwriting agreement in customary form with such underwriters and the Company agrees to indemnify such underwriters, their officers, directors, employees and agents, if any, and each Person, if any, who controls such underwriters within the meaning of Section 15 of the Securities Act to the same extent as provided in this Section 3F with respect to the preliminary Prospectusindemnification of the holders of Registrable Securities; provided, result that the Company shall not be required to indemnify any such underwriter, or any officer, director or employee of such underwriter or any Person who controls such underwriter within the meaning of Section 15 of the Securities Act, to the extent that the loss, claim, damage, liability (or proceedings in respect thereof) or expense for which indemnification is claimed results from such underwriter’s failure to send or give a copy of an amended or supplemented final prospectus to the fact that such Holder sold Securities to a Person to whom there was not sent asserting an untrue statement or given, alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of Registrable Securities to such salePerson if such statement or omission was corrected in such amended or supplemented final prospectus prior to such written confirmation and the underwriter was provided with such amended or supplemented final prospectus.
(b) In connection with any Registration Statement in which a holder of Registrable Securities is participating, a copy such holder, or an authorized officer of such holder, shall furnish to the Company in writing such information regarding such holder as the Company reasonably requests for use in connection with any Registration Statement or prospectus and agrees, severally and not jointly, to indemnify, defend and hold harmless to the full extent permitted by Law, the Company, its directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the ProspectusSecurities Act and Section 20 of the Exchange Act), as amended and the partners, members, directors, officers, agents or supplementedemployees of such controlling persons, if from and against all Losses arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, prospectus, or form of prospectus, or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent, but only to the extent, that such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information regarding such holder so furnished in writing by such holder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission was relied upon by the Company in preparation of such Registration Statement, prospectus or form of prospectus; provided, that such holder of Registrable Securities shall have not be liable in any such case to the extent that the holder has furnished in writing to the Company within a reasonable period of time prior to the filing of any such Registration Statement or prospectus or amendment or supplement thereto information expressly for use in such Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished copies thereof to the Company, and the Company failed to include such information therein. In no event shall the liability of any holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds (net of payment of all taxes and expenses incurred in connection therewith) received by such holder upon the sale of the Registrable Securities giving rise to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do soindemnification obligation. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party.
(c) If any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall give prompt notice to the party or asserted against any parties from which such indemnity is sought (the “Indemnifying Parties”) of the indemnified Persons commencement of any action, suit, proceeding or investigation or written threat thereof (a “Proceeding”) with respect to which indemnity may be sought against such Indemnified Party seeks indemnification or contribution pursuant hereto; provided, that the Company, such indemnified Person shall promptly failure to so notify the Company and Indemnifying Parties shall not relieve the Company Indemnifying Parties from any obligation or liability except to the extent that the Indemnifying Parties have been prejudiced by such failure. The Indemnifying Parties shall assume have the right, exercisable by giving written notice to an Indemnified Party promptly after the receipt of written notice from such Indemnified Party of such Proceeding, to assume, at the Indemnifying Parties’ expense, the defense thereof. Such indemnified Person of any such Proceeding, with counsel reasonably satisfactory to such Indemnified Party; provided, that an Indemnified Party (if more than one such Indemnified Party is named in any Proceeding) shall have the right to employ separate counsel in any such action Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless such Indemnified Party or parties unless: (i) the employment of Indemnifying Parties agree to pay such counsel shall have been specifically authorized in writing by the Company, fees and expenses; (ii) the Company shall have failed Indemnifying Parties fail promptly to assume the defense and of such Proceeding or fail to employ counsel, counsel reasonably satisfactory to such Indemnified Party or parties; or (iii) the named parties to any such action Proceeding (including any implied impleaded parties) include both the indemnified Person such Indemnified Party or parties and the Company Indemnifying Parties or an Affiliate of the Indemnifying Parties or such Indemnified Parties, and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which such Indemnified Party that are different from or additional to those available to the Company (Indemnifying Parties, in which case case, if such Indemnified Party notifies the Company Indemnifying Parties in writing that it elects to employ separate counsel at the expense of the Indemnifying Parties; the Indemnifying Parties shall not have the right to assume the defense of thereof and such action on behalf counsel shall be at the expense of the indemnified Person)Indemnifying Parties, it being understood, however, that that, unless there exists a conflict among Indemnified Parties, the Company Indemnifying Parties shall not, in connection with any one such action Proceeding or separate but substantially similar or related actions or proceedings 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 (in addition to any plus appropriate local counsel) at any time for all such Indemnified Party. Whether or not such defense is assumed by the indemnified PersonsIndemnifying Parties, such Indemnifying Parties or Indemnified Party shall not be subject to any liability for any settlement made without its or their consent (but such consent shall not he unreasonably withheld or delayed). The Indemnifying Parties shall not consent to entry of any judgment or enter into any settlement which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable provides for any settlement of any such action or proceeding effected other than monetary damages without the Company's prior written consent, consent of the Indemnified Party (which consent shall not be unreasonably withheld unreasonablyor delayed) or (y) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release, in form and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent substance satisfactory to the entry of judgment on or otherwise seek to terminate any pending or threatened actionIndemnified Party, claim, litigation or proceeding from all liability in respect of such Proceeding for which such Indemnified Party would be entitled to indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedinghereunder.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(cd) If the indemnification provided for in this Section 2.7 3F is unavailable to an indemnified party under Section 2.7(a) Indemnified Party or (b) (other than by reason of exceptions provided in those Sections) is insufficient to hold such Indemnified Party harmless for any Losses in respect of any losses, claims, damages, liabilities, judgments or expenses referred to thereinwhich this Section 3F would otherwise apply by its terms, then each applicable indemnifying party (in the case of the Holders severally and not jointly)Indemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall have an obligation to contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossesLosses, claims damages, liabilities, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by fault of the Company Indemnifying Party, on the one hand hand, and the Holder such Indemnified Party, on the other hand from sale of Restricted Securitieshand, or (ii) if such 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 Company and such Holder in connection with the actions, statements or omissions which that resulted in such losses, claims, damages, liabilities, judgments or expenses, Losses as well as any other relevant equitable considerations. The relative fault of the Company such Indemnifying Party, on the one hand hand, and of such Holder Indemnified Party, on the other hand, shall be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been taken by, or relates to information supplied by the Company by, such Indemnifying Party or by such Holder Indemnified Party, and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above any Losses shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), include any legal or other fees or expenses reasonably incurred by such party in connection with investigating any Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 3F(a) or defending any action or claim3F(b) was available to such party. The Company and each Holder of Restricted Securities covered by any Registration Statement parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c3F(d) 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 in the immediately preceding paragraphthis Section 3F(d). Notwithstanding the provisions of this Section 2.7(c3F(d), no Holder (and none an Indemnifying Party that is a holder of its related indemnified Persons) Registrable Securities shall not be required to contribute, in the aggregate, contribute any amount in excess of the amount by which the dollar amount of net proceeds received by such Holder upon the sale of the Restricted Securities Indemnifying Party exceeds the amount of any damages which that such Holder Indemnifying Party has otherwise been required to pay by reason reasons of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentations 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. 3G Rules 144 and 144A. The indemnity Company shall file the reports required to be filed by it under the Securities Act and contribution provisions contained in this Section 2.7 are in addition the Exchange Act and the rules and regulations promulgated thereunder and shall take such further action as any holder of Registrable Securities may reasonably request, all to the extent required from time to time to enable such holder to sell (subject to any liability which restrictions on Transfers hereunder) Registrable Securities without registration under the indemnifying Person may otherwise have Securities Act within the limitation of the exemptions provided by Rule 144 and Rule 144A. Upon the request of any holder of Registrable Securities, the Company shall deliver to the indemnified Persons referred such holder a written statement as to abovewhether it has complied with such requirements.
Appears in 1 contract
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Agreement, and subject to applicable law, the Company agrees to will indemnify and hold harmless (i) each underwriter, each Holder covered by any Registration Statementof Registrable Securities (including its respective directors, (iiofficers, employees and agents) so registered, and each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any Act of the Persons referred to in this clause (iii) being hereinafter referred to 1934, as a "controlling Person")amended, and the rules and regulations promulgated thereunder (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i'Exchange Act'), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, 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 actions proceeding or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"any claim asserted), to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such Claims losses, claims, damages or liabilities arise out of or are based upon, or are caused by on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any Registration Statement related preliminary or Prospectus (definitive prospectus, or any amendment or supplement theretoto such registration statement or prospectus), or (ii) any omission or alleged omission to state therein in such document a material fact required to be stated therein in it or necessary to make the statements therein in it not misleading, or a (iii) any violation or alleged violation by the Company of the Securities Act or Act, any state securities law, or 'blue sky' laws or any rule or regulation promulgated under thereunder in connection with such registration, provided, however, that the Securities Act or any state securities law, or any other law applicable Company will not be liable to the Company relating to any extent that such registration loss, claim, damage, expense or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; liability arises from and is based on (xA) are caused by any such an untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished made in writing to the Company by or reliance on behalf of any of such indemnified Person expressly for use therein; (y) and in conformity with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.5
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 2.06(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 2.06, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses (i) liabilities in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 Company Company, the selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on Company, the one hand selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the selling Holders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesHolders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c2.06(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraphsentences. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this Section 2.06(b) in excess of the amount lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Registrable Securities sold under such registration statement which is being sold by which such Holder or (ii) the dollar amount of proceeds received by such Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations 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. .
(c) The indemnity indemnification and contribution provisions contained provided for in this Section 2.7 are 2.06 will remain in addition to full force and effect regardless of any liability which the indemnifying Person may otherwise have to investigation made by or on behalf of the indemnified Persons referred to aboveparties or any officer, director, employee, agent or controlling person of the indemnified parties.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise out of or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly), 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, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 Company and such Holder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 2.7(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 does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c), no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution provisions contained in this Section 2.7 are in addition to any liability which the indemnifying Person may otherwise have to the indemnified Persons referred to above.Section
Appears in 1 contract
Samples: Registration Rights Agreement (Senesco Technologies Inc)
Indemnification; Contribution. (a) The In connection with any registration of Registrable Securities pursuant to this Article III, the Company agrees to indemnify and hold harmless (i) harmless, to the fullest extent permitted by Law, each Holder covered by any Registration Statementof the Investors and their respective Affiliates, (ii) the Investors’ Representative and each other of its Affiliates, and each Person who participates as controls an underwriter in Investor or the offering or sale of such securities, (iii) each Person, if any, who controls (Investors’ Representative within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) , in each case other than any such Holder Affiliate that is an Excluded GIC Entity or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person")Excluded Portfolio Company Pension Fund, and (iv) the respective directors, officers, directorsemployees, partners, employeesaffiliates, members, managers, shareholders, assignees and representatives and agents of any such Holder or underwriter or any controlling Person each of the foregoing (any Person referred to in clause (i)collectively, (ii), (iiithe “Indemnified Persons”) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expensesjudgments, actions and expenses (including reasonable attorneys’ fees) (“Losses”) joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise arising out of or are based upon, or are caused by upon (i) any untrue statement or alleged untrue statement of a material fact contained in any part of any Registration Statement Statement, any preliminary or Prospectus (final prospectus or other disclosure document used in connection with the Registrable Securities, any Issuer FWP or any amendment or supplement thereto)to any of the foregoing, or 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, in the light of the circumstances under which they were made) not misleading, misleading or a (ii) any violation or alleged violation by the Company of the Securities Act or any state securities lawof its Subsidiaries of any federal, state, foreign or any common law rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company or any of its Subsidiaries and relating to action or inaction in connection with any such registration registration, Registration Statement, other disclosure document or qualificationIssuer FWP; provided, except insofar as such however, that the Company will not be required to indemnify any Indemnified Person for any losses, claims, damages, liabilities, judgments judgments, actions or expenses of any such indemnified Person; (x) are caused by resulting from any such untrue statement or omission or alleged if such untrue statement or omission that is based upon was made in reliance on and in conformity with information relating with respect to any Indemnified Person furnished to the Company in writing by the Investors expressly for use therein.
(b) In connection with any Registration Statement, preliminary or final prospectus, or Issuer FWP, each Investor agrees to indemnify, severally and not jointly, the Company, its Directors, its officers who sign such Registration Statement and each Person, if any, who controls the Company (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as the foregoing indemnity from the Company to the Investors, but only with respect to information with respect to such indemnified Person Investor furnished to the Company in writing by such Investor expressly for use in such Registration Statement, preliminary or final prospectus, or Issuer FWP to the extent such information is included therein in reliance upon and in conformity with the information furnished to the Company by or on behalf of any of such indemnified Person Investor expressly for use therein; (y) with provided, however, that in no event shall any Investor’s liability pursuant to this Section 3.08 in respect of the offering to which such loss, claim, damages, liabilities, judgments, actions or expenses relate exceed an amount equal to the preliminary Prospectus, result proceeds to such Investor (after deduction of all Underwriters’ discounts and commissions) from such offering less the fact that amount of any damages which such Holder sold Securities Investor has otherwise been required to a Person to whom there was not sent or given, at or prior to the written confirmation pay by reason of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or information.
(zc) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any claim, action shall be brought or asserted against proceeding (including any governmental investigation) is instituted involving any Person in respect of the indemnified Persons with respect to which indemnity may be sought against the Companypursuant to Section 3.08(a) or (b), such Person (hereinafter called the “indemnified Person shall party”) will (i) promptly notify the Company and Person against whom such indemnity may be sought (hereinafter called the Company “indemnifying party”) in writing; provided, however, that the failure to give such notice shall not relieve the indemnifying party of its obligations pursuant to this Agreement except to the extent such indemnifying party has been prejudiced in any material respect by such failure; (ii) permit the indemnifying party to assume the defense thereofof such claim, action or proceeding with counsel reasonably satisfactory to the indemnified party to represent the indemnified party; and (iii) pay the fees and disbursements of such counsel related to such claim, action or proceeding. Such In any such claim, action or proceeding, any indemnified Person shall party will have the right to employ separate counsel in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel shall will be at the expense of such indemnified party (without prejudice to such indemnified party’s indemnity and other rights under the Charter, Bye-laws and applicable Law, if any) unless (A) the indemnifying party and the indemnified Person unless (i) party have mutually agreed to the employment retention of such counsel shall have been specifically authorized in writing by the Companycounsel, (ii) the Company shall have failed to assume the defense and employ counsel, or (iiiB) the named parties to any such claim, action or proceeding (including any implied impleaded parties) include both the indemnified Person and the Company indemnifying party and the indemnified Person shall have party and the indemnified party has been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available counsel, with a copy provided to the Company Company, that representation of both parties by the same counsel would be inappropriate due to actual or potential conflicting interests between them, (in which case C) the Company shall not have the right indemnifying party has failed to assume the defense of such action on behalf of claim and employ counsel reasonably satisfactory to the indemnified Person)party, it being understoodor (D) any such, howeverclaim, action or proceeding is a criminal or regulatory enforcement action. It is understood that the Company shall indemnifying party will not, in connection with such any claim, action or similar proceeding or related claims, actions or proceedings arising out of in the same general allegations or circumstancesjurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys for the indemnified parties (in addition to any local counsel) counsel at any time for all such indemnified parties) and that all such reasonable fees and expenses will be reimbursed reasonably promptly following a written request by an indemnified party stating under which clause of (A) through (C) above reimbursement is sought and delivery of documentation of such fees and expenses. In the case of the retention of any such separate firm for the indemnified Personsparties, which such firm shall will be (x) designated in writing by such the indemnified Persons; and (y) reasonably satisfactory to the Companyparties. The Company shall indemnifying party will not be liable for any settlement of any such claim, action or proceeding effected without the Company's prior its written consent, consent (which consent shall not be withheld unreasonablyunreasonably withheld), and but if such claim, action or proceeding is settled with such consent or if there has been a final non-appealable judgment for the Company plaintiff, the indemnifying party agrees to indemnify and hold harmless any the indemnified Person party from and against any loss, claim, damage, liability, judgment loss or expense liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party will have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by the third sentence of this Section 3.08(c), the indemnifying party agrees that it will be liable for any settlement of any action proceeding effected with the without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the Companyaforesaid request and (ii) such indemnifying party has not reimbursed the indemnified party in accordance with such request or reasonably objected in writing, on the basis of the standards set forth herein, to the propriety of such reimbursement prior to the date of such settlement. The Company shall notNo indemnifying party will, without the prior written consent of each the indemnified Personparty, settle or compromise or consent to the entry effect any settlement of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding (i) in respect of which indemnification any indemnified party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not any by such indemnified Person is a party thereto)party, unless such settlement, compromise, consent or termination settlement includes an unconditional release of each such indemnified Person party from all liability arising out on claims that are the subject matter of such actionproceeding or (ii) which involves the imposition of equitable remedies on the indemnified party or the imposition of any obligation on the indemnified party, claim litigation or proceedingother than as a result of the imposition of financial obligations for which the indemnified person will be indemnified hereunder.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(cd) If the indemnification provided for in this Section 2.7 3.08 from the indemnifying party is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) hereunder in respect of any losses, claims, damages, liabilities, judgments judgments, actions or expenses referred to thereinin this Section 3.08, then each applicable the indemnifying party (in the case of the Holders severally and not jointly)party, in lieu of indemnifying such indemnified party, shall will contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments judgments, actions or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by fault of the Company on indemnifying party and indemnified party in connection with the one hand and the Holder on the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other hand from sale of Restricted Securitiesrelevant equitable considerations, or (ii) if such the allocation provided by clause (i) above is not permitted by applicable lawLaw, in such proportion as is appropriate to reflect not only the relative benefits fault referred to in clause (i) above but also the relative fault benefit of the Company Company, on the one hand, and such Holder the Investors, on the other, in connection with the statements or omissions which that resulted in such losses, claims, damages, liabilities, judgments judgments, actions or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand such indemnifying party and of such Holder on the other shall indemnified party will be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been taken by, or relates to information supplied by the Company by, such indemnifying party or by such Holder indemnified party, and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionaction. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall will be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a3.08(c), any legal or other fees or expenses reasonably incurred by such party in connection with investigating any investigation or defending any action or claim. proceeding.
(e) The Company and each Holder of Restricted Securities covered by any Registration Statement parties agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c3.08(d) 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 the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c3.08(d), no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person guilty of “fraudulent misrepresentations 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. The indemnity Notwithstanding the provisions of Section 3.08(d) and contribution provisions contained in this Section 2.7 are 3.08(e), each Investor’s liability pursuant to Section 3.08(d) in addition respect of the offering to which such loss, claim, damages, liabilities, judgments, actions or expenses relate shall not exceed an amount equal to the proceeds to such Investor (after deduction of all Underwriters’ discounts and commissions) from such offering less the amount of any damages which such Investor has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Each Investor’s obligation to contribute pursuant to this Section 3.08 is several in proportion to the respective number of Registrable Securities held by such Investor hereunder and not joint.
(f) For purposes of this Section 3.08, each Indemnified Person shall have the same rights to contribution as such Investor, and each officer, Director and Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall have the same rights to contribution as the Company, subject in each case to the limitations set forth in the immediately preceding paragraph. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this Section 3.08, notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 3.08 or otherwise except to the extent that it has been prejudiced in any material respect by such failure. No party shall be liable for contribution with respect to any liability which action or claim settled without its written consent; provided, however, that such written consent was not unreasonably withheld.
(g) If indemnification is available under this Section 3.08, the indemnifying Person may otherwise have party will indemnify each indemnified party to the full extent provided in Sections 3.08(a) and (b) without regard to the relative fault of said indemnifying party or indemnified Persons referred to aboveparty or any other equitable consideration provided for in Section 3.08(d) or (e).
Appears in 1 contract
Samples: Shareholder Agreement (Genpact LTD)
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Section 6, the Company agrees to will indemnify and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934 (the "Exchange Act") (a "Controlling Person"), 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, as the same are incurred), to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading, or sale of such securities, (iii) any violation by the Company of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder or Controlling Person expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder will indemnify and hold harmless each Personunderwriter, if anythe Company (including its directors, officers, employees and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees and agents of any of them, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such Claims arise out of or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate same extent provided in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Companyimmediately preceding sentence. The Company shall not be liable obligated hereunder to indemnify any Holder for any amount paid in settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment liability or expense by reason of any action if such settlement of any action is effected with without the written consent of the CompanyCompany (which consent shall not be unreasonably withheld). The Company In no event, however, shall notthe liability of a Selling Holder for indemnification under this Section 6.5(a) exceed the lesser of (i) that proportion of the total of such losses, without the prior written consent of each claims, damages or liabilities indemnified Person, settle or compromise or consent against equal to the entry proportion of judgment on the total securities sold under such registration statement which is being sold by such Selling Holder or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect (ii) the proceeds received by such Selling Holder from its sale of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless Registrable Securities under such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingregistration statement.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 6.5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 6.5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand other Selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted the Registrable Securities, or (ii) if such 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 Company Company, the other Selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesSelling Holders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c6.5(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Selling Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this Section 6.5(b) in excess of the amount lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Registrable Securities sold under such registration statement which are being sold by which such Selling Holder or (ii) the dollar amount of proceeds received by such Selling Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(c) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 are in addition 6.5 shall be deemed to any liability which the indemnifying Person may otherwise have include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified Persons referred to aboveparty in connection with investigating or defending any such action or claim, payable as the same are incur-red. The indemnification and contribution provided for in this Section 6.5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties.
Appears in 1 contract
Samples: Stock Purchase and Stockholders Agreement (PROS Holdings, Inc.)
Indemnification; Contribution. (a) The Company agrees shall, to the fullest extent permitted by law, indemnify and hold harmless (i) each Holder covered by of Registrable Securities, any Registration Statement, (ii) each other Person who participates as an underwriter in is or might be deemed to be a “controlling person” of the offering Company or sale any of such securities, (iii) each Person, if any, who controls (its subsidiaries within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) Act (each such Person, a “Controlling Person”), their respective direct and indirect general and limited partners, advisory board members, directors, officers, trustees, managers, members, employees, agents, Affiliates and shareholders, and each other Person, if any, who acts on behalf of or controls any such Holder or underwriter Controlling Person (any each of the Persons referred to in this clause (iiiforegoing, a “Covered Person”) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, actions, damages, liabilities, judgments or liabilities and expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Covered Person may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such Claims losses, claims, actions, damages, liabilities or expenses arise out of or are based upon, or are caused by upon (i) any untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference in any Registration Statement Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or Prospectus (any successor rule to Rule 405) or any amendment or supplement thereto)to or any document incorporated by reference in the same, or (ii) any omission or alleged omission to state therein of a material fact required to be stated therein in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements therein made in the same not misleading, misleading or a (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities law, laws or any rule or regulation promulgated under the Securities Act such federal or any state securities law, or any other law laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, the Company shall reimburse each Covered Person for any legal or other expenses reasonably incurred by such Covered Person in connection with investigating, defending or settling any such loss, claim, action, damage or liability. Notwithstanding the previous sentence, the Company shall not be so liable in any such case to the extent that any loss, claim, action, damage, liability or expense arises out of or is based upon any such untrue statement or alleged untrue statement, or omission or alleged omission, made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. This indemnity shall be in addition to any liability the Company may otherwise have.
(b) In connection with any registration in which a Holder of Registrable Securities is participating, each such Holder shall furnish to the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or qualificationProspectus. Each Holder shall, except to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities, judgments liabilities or expenses arise out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained in the Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to the same or (ii) any omission or alleged omission of a material fact required to be stated in such indemnified Person; Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading, but, in the case of each of clauses (xi) are caused by any and (ii), only to the extent that such untrue statement or alleged untrue statement, or omission or alleged untrue statement omission, is made in such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or omission that is based upon any amendment or supplement to the same in reliance upon, and in conformity with, written information relating to such indemnified Person prepared and furnished in writing to the Company by or on behalf of any of such indemnified Person Holder expressly for use therein; (yin such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, such Holder shall reimburse the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person for any legal or other expenses reasonably incurred by them in connection with investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) with respect shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to net proceeds (after deducting Selling Expenses) actually received by such Holder in accordance with the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (zSection 11(b) as a result of the use by an indemnified Person shall not apply to amounts paid in settlement of any Prospectus whensuch loss, upon receipt claim, damage, liability, action or proceeding if such settlement is effected without the consent of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any action Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be brought or asserted against in addition to any liability which such Holder may otherwise have.
(c) Any Person entitled to indemnification pursuant to this Agreement shall give prompt written notice to the indemnifying party of the indemnified Persons any claim with respect to which indemnity may be sought against it seeks indemnification. Notwithstanding the Companyprevious sentence, such indemnified Person shall promptly any failure or delay to so notify the Company indemnifying party shall not relieve the indemnifying party of its obligations under this Agreement, except to the extent that the indemnifying party is actually and materially prejudiced by reason of such failure or delay. In case a claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified party, the Company indemnifying party shall assume the defense thereof. Such indemnified Person be entitled to participate in and shall have the right right, exercisable by giving written notice to employ separate counsel in the indemnified party as promptly as practicable after receipt of written notice from such indemnified party of such claim or action, to assume, at the indemnifying party’s expense, the defense of any such action and claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to be entitled to participate in the defense thereofof such claim or action, with counsel of its own choice, but the fees indemnifying party shall not be obligated to reimburse the indemnified party for any fees, costs and expenses of such counsel shall be at the expense of subsequently incurred by the indemnified Person party in connection with such defense unless (iA) the employment of such counsel shall have been specifically authorized indemnifying party has agreed in writing by the Companyto pay such fees, costs and expenses, (iiB) the Company shall have indemnifying party has failed to assume the defense and of such claim or action within a reasonable time after receipt of notice of such claim or action, (C) having assumed the defense of such claim or action, the indemnifying party fails to employ counselcounsel reasonably acceptable to the indemnified party or to pursue the defense of such claim or action in a reasonably vigorous manner, (D) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest or (iiiE) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel party has reasonably concluded that there may be one or more legal or equitable defenses available to it and/or other any other indemnified party which are different from or additional to those available to the Company (in which case indemnifying party. Subject to the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person)foregoing sentence, it being understood, however, that the Company shall notno indemnifying party shall, in connection with such any one claim or action or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations circumstances or circumstancesallegations, be liable for the reasonable fees fees, costs and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Companyparties. The Company indemnifying party shall not be liable have the right to settle a claim or action for which any settlement of any such action or proceeding effected indemnified party is entitled to indemnification pursuant to this Agreement without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. indemnified party, The Company indemnifying party shall not, without the prior written consent of each indemnified Person, settle or compromise or not consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes as an unconditional term of such judgment or otherwise seek settlement the giving by the claimant or plaintiff in such judgment or settlement to terminate any pending or threatened actionsuch indemnified party, claimin form and substance reasonably satisfactory to such indemnified party, litigation or proceeding of a full and final release from all liability in respect of which indemnification such claim or contribution may be sought hereunder (whether or not any indemnified Person is a action. The indemnifying party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required liable under this Agreement for any amount paid or payable or incurred pursuant to assume or in connection with any judgment entered or settlement effected with the defense thereof)consent of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, and the Company conditioned or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(adelayed).
(cd) If the indemnification provided for in this Section 2.7 11 is held by a court of competent jurisdiction to be unavailable to to, or unenforceable by, an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any lossesloss, claimsclaim, damagesaction, liabilitiesdamage, judgments liability or expenses expense referred to thereinin this Section 11, then each the applicable indemnifying party (in the case of the Holders severally and not jointly)party, in lieu of indemnifying such indemnified partyparty under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such lossesloss, claims damagesclaim, liabilitiesaction, judgments damage, liability or expenses (i) expense in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand indemnified party and the Holder on indemnifying party. If the other hand from sale of Restricted Securities, or (ii) if such allocation provided by clause (i) above the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above the preceding sentence but also the relative fault of the Company indemnified party and such Holder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expensesindemnifying party, as well as any other relevant equitable considerations. The relative fault of the Company indemnifying party, on the one hand hand, and of such Holder the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such Holder and federal or state securities law applicable to the parties Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement statement, omission or omissionviolation. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement parties agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c) Agreement were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of or allocation which that does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c11(c), . In no Holder (and none of its related indemnified Persons) event shall be required to contribute, in the aggregate, any amount in excess of the amount by which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(c) exceed an amount equal to the dollar amount of net proceeds (after deducting Selling Expenses) actually received by such Holder upon in the sale of the Restricted Registrable Securities exceeds the amount of any damages which that gives rise to such Holder has otherwise been required obligation to pay by reason of such untrue statement or omission or alleged omissioncontribute. No Person indemnified party guilty or liable of fraudulent misrepresentations (misrepresentation within the meaning of Section 11(f) of the Securities Act) Act shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. .
(e) The indemnity and contribution provisions contained in of this Section 2.7 are 11 shall remain in addition to full force and effect regardless of any liability which investigation made by or on behalf of any indemnified party or any officer, director or controlling person of such indemnified party and shall survive the indemnifying Person may otherwise have to the indemnified Persons referred to aboveTransfer of any Registrable Securities by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Incident to any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company agrees to will indemnify and hold harmless (i) each underwriter, each Holder covered by who offers or sells any Registration Statementsuch Registrable Securities in connection with such registration statement, including its partners (ii) including partners of partners and stockholders of any such partners), and directors, officers, employees, representatives and agents of any of them (a "SELLING HOLDER"), and each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter Act (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling PersonCONTROLLING PERSON"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (including any investigation, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or actions proceeding or proceedingsany claim asserted, whether commenced or threatened, in respect thereof) (collectively, "Claims"as the same are incurred), to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, at common law or otherwise ("INDEMNIFIABLE CLAIMS"), insofar as such Claims losses, claims, damages or liabilities arise out of or are based upon, or are caused by on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any Registration Statement related preliminary or Prospectus (definitive prospectus, or any amendment or supplement theretoto such registration statement or prospectus), or (ii) any omission or alleged omission to state therein in such document a material fact required to be stated therein in it or necessary to make the statements therein in it not misleading, (iii) any violation or a alleged violation by the Company of the Securities Act or Act, the Exchange Act, any state securities law, law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law, (iv) any failure to register or qualify the Registrable Securities in any state where the Company or its agents has affirmatively undertaken or agreed in writing that the Company (the undertaking of any underwriter chosen by the Company being attributed to the Company) will undertake such registration or qualification on the Selling Holder's behalf (provided that in such instance the Company shall not be so liable if it has undertaken its best efforts to so register or qualify the Registrable Securities), or (v) any blue sky application or other law applicable document executed by the Company specifically for the purpose or based upon written information furnished by the Company filed in any state or other jurisdiction in order to qualify any or all of the Registrable Securities under the securities laws thereof; PROVIDED, HOWEVER, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement of a material fact contained in such registration statement or omission made in reliance on and in conformity with information furnished in writing to the Company relating to any by such underwriter, Selling Holder or Controlling Person expressly for use in such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any statement. With respect to such untrue statement or omission or alleged untrue statement or omission that is based upon in the information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person Selling Holder expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that in such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Companyregistration statement, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to Selling Holder will indemnify and hold harmless any indemnified Person from and against any losseach underwriter, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and (including its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, employees, representatives and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, partnersofficers, employees, representatives and agents of eachany of them, and each Controlling Person of any of them), from and against any and all losses, claims, damages, expenses and liabilities, joint or several, to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise to the same extent as provided in the foregoing indemnity from immediately preceding sentence. In no event, however, shall the Company to each liability of a Selling Holder for indemnification under this Section 5(a) exceed the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, net proceeds received by such Purchaser Selling Holder from its sale of Registrable Securities under such registration statement, except in the sale or other disposition case of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a)willful fraud.
(cb) If the indemnification provided for in this Section 2.7 5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses (i) liabilities in such proportion as is appropriate to reflect (i) the relative benefits received by the Company on Company, the one hand Selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, or the Registrable Securities and (ii) if such 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 Company Company, the Selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations; PROVIDED, HOWEVER, that in the event of a registration statement filed in response to a demand for registration under Section 3(a) and in which the Company does not register any shares of capital stock, the proportion of contribution by the Company, the Selling Holders and the underwriters shall in all cases be governed solely by clause (ii) above. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement the Selling Holders agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c5(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Selling Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this Section 5(b) in excess of the amount by which the dollar amount of net proceeds received by such Selling Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(c) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 5 shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in this Section 5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. No indemnifying party, in the defense of any such claim or litigation, shall enter into a consent of entry of any judgment or enter into a settlement without the consent of the indemnified party, which consent will not be unreasonably withheld.
(d) Promptly after receipt by an indemnified party of any Indemnifiable Claim, the indemnified party shall give notice thereof in writing to the Company; PROVIDED, HOWEVER, the failure to give such notice shall not relieve the Company from its obligations under this Section 5 except to the extent that the Company shall have been materially and adversely prejudiced as a result of the failure or delay in giving such notice. In any proceeding involving an Indemnifiable Claim, the Company shall control the defense thereof; provided that, the indemnified party shall have the right to retain its own counsel at its own expense. Notwithstanding the foregoing, the Company shall pay as incurred the fees and expenses of the counsel retained by the indemnified party in the event that (i) the Company and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the Company and the indemnified party and the representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in an underwriting agreement entered into by the Company in connection with an underwritten public offering in which the Holders or the Founder seek to include the Registrable Securities or the Founder Registrable Securities pursuant to Section 2 hereof are in addition conflict with the foregoing provisions, the provisions of the underwriting agreement shall control. The Company shall not, without the prior written consent of any indemnified party, consent to the entry of any judgment against the indemnified party or enter into any settlement or compromise which (i) includes an admission of fault of the indemnified party or (ii) does not include, as an unconditional term thereof, the full release of the indemnified party from all liability in respect of such Indemnifiable Claim, which the indemnifying Person may otherwise have release shall be in form and substance reasonably satisfactory to the indemnified Persons referred to aboveparty.
Appears in 1 contract
Samples: Registration Rights Agreement (Hittite Microwave Corp)
Indemnification; Contribution. (a) The Incident to any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company agrees to will indemnify and hold harmless (i) each Holder covered by who offers or sells any Registration Statementsuch Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), (ii) and directors, officers, employees, representatives and agents of any of them, and each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, reasonable expenses and liabilities, judgments or expenses, joint or several (including any reasonable investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or actions proceeding or proceedingsany claim asserted, whether commenced or threatened, in respect thereof) (collectively, "Claims"as the same are incurred), to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such Claims losses, claims, damages or liabilities arise out of or are based upon, or are caused by on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any Registration Statement related preliminary or Prospectus (definitive prospectus, or any amendment or supplement thereto), to such registration statement or prospectus) or (ii) any omission or alleged omission to state therein in such document a material fact required to be stated therein in it or necessary to make the statements therein in it not misleading; provided, however, that the Company will not be liable to the extent that (1) such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by or on behalf of such Holder in accordance with Section 4(b) of this Agreement for use in such registration statement, or (2) in the case of a violation sale directly by such Holder (including a sale of Registrable Securities through any underwriter retained by such Holder to engage in a distribution solely on behalf of such Holder), such untrue statement or alleged untrue statement or omission or alleged omission was contained in a preliminary prospectus and corrected in a final or amended prospectus, and such Holder failed to deliver a copy of the Company final or amended prospectus at or prior to the confirmation of the sale of the Registrable Securities to the Person asserting any such loss, claim, damage or liability in any case where such delivery is required by the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable laws. With respect to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon in the information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with Section 4(b) of this Agreement and said Prospectusfor use in such registration statement, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally several and not jointlyjoint basis, to will indemnify and hold harmless the Company and (including its directors, officers officers, employees, representatives and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees, representatives and agents of any Person controlling (of them, and each person who controls any of them " = "1" "" "" within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company), from and against any and all losses, claims, damages, reasonable expenses and liabilities, joint or several (including any reasonable 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, as the respective officers, directors, partners, employees, representatives and agents of eachsame are incurred), to which they, or any of them, may become subject under the same extent as Securities Act, the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale Exchange Act or other disposition of his federal or its Restricted Securities covered by such Registration Statement. In case any action state statutory law or proceeding shall be brought against the Company regulation, at common law or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a)otherwise.
(cb) If the indemnification provided for in this Section 2.7 5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on other Holders from the other hand from sale offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company and such Holder the other Holders in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Holders shall be deemed to be in the same respective proportions that the net proceeds from the offering received by the Company and the Holders, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on and the one hand and of such Holder on the other Holders shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by or on behalf of the Company or by such Holder the Holders and the parties Parties’ relative intent, knowledge, knowledge and access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claiminformation. The Company and each Holder of Restricted Securities covered by any Registration Statement the Holders agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c5(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c), no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(c) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 are in addition 5 shall be deemed to any liability which the indemnifying Person may otherwise have include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified Persons referred party in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in this Section 5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. No indemnifying party, in the defense of any such claim or litigation, shall enter into a consent of entry of any judgment or enter into a settlement without the consent of the indemnified party, which consent will not be unreasonably withheld. Any indemnified party that proposes to above.assert the right to be indemnified under this " = "1" "" ""
Appears in 1 contract
Samples: Registration Rights Agreement (Aptevo Therapeutics Inc.)
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Article III, and subject to applicable law, the Company agrees to will indemnify and hold harmless each underwriter, and each Holder who offers or sells any such Registrable Shares in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), and directors, officers, employees and agents of any of them (a "Selling Stockholder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a "Controlling Person"), 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), as the same are incurred to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading, or sale of such securities, (iii) any violation by the Company of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter or Selling Stockholder expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Selling Stockholder expressly for use in such registration statement, such Selling Stockholder will indemnify and hold harmless each Personunderwriter, if anythe Company (including its directors, officers, employees and agents), and each other Selling Stockholder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees and agents of any of them), and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar at common law or otherwise to the same extent provided in the immediately preceding sentence. In no event, however, shall the liability of a Selling Stockholder for indemnification under this Section 3.4(a) in its capacity as such Claims arise out exceed the lesser of or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company i) that proportion of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as total of such losses, claims, damages, liabilities, judgments damages or expenses of any such liabilities indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing against equal to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy proportion of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to total securities sold under such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue registration statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities which is being sold by such Holder. In case any action shall be brought Selling Stockholder or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated proceeds received by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement Selling Stockholder from its sale of any Registrable Shares under such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingregistration statement.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 3.4(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 3.4, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand other Selling Stockholders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, the Registrable Shares or (ii) if such 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 Company Company, the other Selling Stockholders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Stockholders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Stockholders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Shares. The relative fault of the Company on Company, the one hand Selling Stockholders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Stockholders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesSelling Stockholders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c3.4(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no Holder (and none of its related indemnified Persons) however, shall a Selling Stockholder be required to contribute, in the aggregate, contribute any amount under this Section 3.4(b) in excess of the amount lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Registrable Shares sold under such registration statement which are being sold by which such Selling Stockholder or (ii) the dollar amount of proceeds received by such Holder upon the Selling Stockholder from its sale of the Restricted Securities exceeds the amount of any damages which Registrable Shares under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(c) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 are in addition 3.4 shall be deemed to any liability which the indemnifying Person may otherwise have include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified Persons referred party in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in this Section 3.4 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties, and regardless of any transfer or sale of shares by any Holder or any termination of Holder's rights to aboveregistration hereunder.
Appears in 1 contract
Samples: Registration Rights Agreement (Boron Lepore & Associates Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless each Initial Purchaser, each Holder, each person (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Persona "CONTROLLING PERSON"), if any, who controls (any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), Act and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter Initial Purchaser, the Holders or any controlling Controlling Person (any Person referred to in clause (i)each, (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified PersonINDEMNIFIED PARTY"), to the fullest extent lawful, from and against any and all lossesloss, claimsdamage, damagesexpense, liabilitiesliability, judgments claim or expenses, joint or several (or any actions or proceedings, whether commenced or threatened, in respect thereofthereof (including the reasonable cost of investigation) (collectively, "Claims"), to which such indemnified Person Indemnified Party may become subject incur under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwise, insofar as such Claims arise loss, damage, expense, liability, claim or action arises out of or are is based upon, or are caused by upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus (Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto)thereto or in any preliminary prospectus, or 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 violation by 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 such statements were made, not misleading, and the Company of shall reimburse, as incurred, the Securities Act Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any state securities lawsuch loss, damage, expense, liability, claim or any rule or regulation promulgated under the Securities Act or any state securities lawaction in respect thereof; PROVIDED, or any other law applicable to HOWEVER, that the Company relating shall not be required to provide any indemnity pursuant to this Section 6(a) in any such registration or qualification, except case insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by loss, damage, expense, liability, claim or action arises out of or is based upon any such untrue statement or omission or alleged untrue statement or omission that is based upon of a material fact contained in, or omitted from, and in conformity with information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person an Initial Purchaser or a Holder to the Company expressly for use thereinin, any Shelf Registration Statement or any Prospectus; (y) PROVIDED FURTHER that, with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary or final prospectus relating to a Shelf Registration Statement, the preliminary Prospectusindemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, result damages, expenses, liabilities, claims or actions purchased such Registrable Securities, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that such Holder sold Securities to a Person to whom there was not sent or givengiven to such person, at or prior to the written confirmation of the sale of such saleRegistrable Securities to such person, a copy of the Prospectus, as amended or supplementedfinal correct prospectus, if the Company shall have had previously notified the Holder that such preliminary or final prospectus should not be used and furnished corrected copies thereof to such Holder in a timely manner so as to permit timely delivery by such Holder of a copy of the corrected prospectus at or prior to written confirmation of sale; PROVIDED FURTHER, that this indemnity agreement will not apply to any loss, damage, expense, liability, claim or action arising from an offer or sale, occurring during a Suspension Period, of Registrable Securities by a Notice Holder to whom the Company theretofore provided a Suspension Notice in accordance with this Agreement and said ProspectusSection 3(i); PROVIDED FURTHER, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, howeverHOWEVER, that the Company shall not, in connection with such action or similar or related actions or proceedings arising out of the same general allegations or circumstances, this indemnity agreement will be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified Persons, liability which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees may otherwise have to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingIndemnified Party.
(b) Each Holder of Restricted Securities covered by any Registration Statement agreesHolder, severally and not jointly, agrees to indemnify indemnify, defend and hold harmless the Company and Company, its directors, officers officers, employees, representatives and agents and any Person controlling (person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of Act (each, to a "COMPANY INDEMNIFIED PARTY") from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the same extent reasonable cost of investigation) which such Company Indemnified Party may incur under the Securities Act, the Exchange Act or otherwise, insofar as the foregoing indemnity from the Company to each of the indemnified Personssuch loss, but only damage, expense, liability, claim or action (i) arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with ---- respect to actions based on information relating to such Holder (the "HOLDER INFORMATION") furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, and or in any amendment or supplement thereto or in any preliminary prospectus, (ii) arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information required to be stated in any Shelf Registration Statement or Prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or necessary to make such Holder Information not misleading, (iii) arises out of or is based upon a sale of Registrable Securities during a Suspension Period by a Notice Holder to whom the Company theretofore provided a Suspension Notice in accordance with Section 3(i), or (iv) arises out of or is based upon a sale of Registrable Securities by a Notice Holder without delivery of the most recent applicable Prospectus provided to such Holder by the Company pursuant to Section 3(g) or Section 2(d), if a prospectus was required to be delivered by such Holder under the Securities Act in connection with such sale and the Holder had received copies of the most recent applicable prospectus in a timely manner so as to permit such delivery; and, subject to the extent limitation set forth in the immediately preceding clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any Company Indemnified Party in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any Company Indemnified Party. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the gross proceeds, if any, proceeds received by such Purchaser from Holder upon the sale or other disposition of his or its Restricted Securities covered by such sale, pursuant to the Shelf Registration Statement. In case , of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action action, suit or proceeding shall be (each, a "PROCEEDING") is brought against the Company or its directors or officers or any such controlling Person person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statementpursuant to either Section 6(a) or Section 6(b), such Holder person (the "INDEMNIFIED Party") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; PROVIDED, HOWEVER, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise, except to the extent the Indemnifying Party is materially prejudiced thereby. Such Indemnified Party shall have the rights right to employ its own counsel in any such case, but the fees and duties given expenses of such counsel shall be at the Company expense of such Indemnified Party unless the employment of such counsel shall have been authorized in Section 2.7(awriting by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (except in which case such Indemnifying Party shall not have the right to direct that portion of the Holder defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of 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 required liable for the 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 assume such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the defense thereof)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 Company or its directors or officers or such controlling Person 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 counsel as contemplated by the rights second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and duties (iii) such Indemnified Party shall have given such Indemnifying Party at least thirty (30) days' prior notice of its intention to each Holder settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement 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 Section 2.7(a)such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such Indemnified Party.
(cd) If the indemnification provided for in this Section 2.7 6 is unavailable to an indemnified party Indemnified Party under Section 2.7(a6(a) or (b) (other than by reason of exceptions provided in those Sections) Section 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expenses actions referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)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, judgments claims or expenses actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and by the Holder Holders or the Initial Purchaser, on the other hand hand, from sale the offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, on the one hand, and such Holder of the Holders or the Initial Purchaser, on the other hand, in connection with the statements or omissions which resulted in such losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expensesactions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of such Holder the Holders or the Initial Purchaser, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder the Holders or the Initial Purchaser and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments expenses, liabilities, claims and expenses actions referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. Proceeding.
(e) The Company Company, the Holders and each Holder of Restricted Securities covered by any Registration Statement the Initial Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c) 6 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 does not take into account of the equitable considerations referred to in the immediately preceding paragraphSection 6(d) above. Notwithstanding the provisions of this Section 2.7(c)6, no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount in excess of the amount by which the dollar amount of proceeds received total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder upon were offered to the sale of the Restricted Securities public exceeds the amount of any damages which such Holder 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 misrepresentations 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. The Holders' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 2.7 are 6 shall remain operative and in addition to full force and effect regardless of (i) any liability which termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnifying Person may otherwise have to Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the indemnified Persons referred to aboveCompany, or the Company's officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Samples: Registration Rights Agreement (SFBC International Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Personperson, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons persons referred to in this clause (iii) being hereinafter referred to as a "controlling Personperson"), ) and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person person (any Person person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise out of or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a Black-Out Notice or a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv2.4(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense defence thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, counsel or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; Persons and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of eacheach person, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser Holder from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a2.8(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person person shall have the rights and duties given to each Holder by Section 2.7(a2.8(a).
(c) If the indemnification provided for in this Section 2.7 2.8 is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly), 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, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, Securities or (ii) if such 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 Company and such Holder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a2.8(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c2.8(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 does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c), 2.8(c) no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentations (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. The indemnity indemnity, and contribution provisions contained in this Section 2.7 2.8 are in addition to any liability which the indemnifying Person person may otherwise have to the indemnified Persons persons referred to above.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless (i) the Initial Purchasers, each Holder covered by any Registration Statementand each Participating Broker-Dealer, (ii) each other Person who participates as an underwriter in the offering or sale of such securitiesand their respective partners, (iii) directors and officers, and each Person, if any, who controls (any Holder within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and 1934 Act against any and all losses, claims, damages, damages or liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person Holder may become subject subject, under either Section 15 of the Securities Act or Section 20 of the Exchange 1933 Act or otherwise, insofar as such Claims losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon, or are caused by any upon an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement pursuant to which Exchange Securities or Prospectus (Registrable Securities were registered under the 1933 Act, any Prospectus, or any amendment amendments or supplement thereto), or 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 not misleading, and will reimburse each Holder for any legal or a violation other expenses reasonably incurred by the Company of the Securities Act such Holder in connection with investigating or defending any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments liabilities or action as such expenses of any such indemnified Personare incurred; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understoodprovided, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of in any such action or proceeding effected without case to the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless extent that any indemnified Person from and against any such loss, claim, damage, liability, judgment damage or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising arises out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions is based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 is unavailable to upon an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly), 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, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 Company and such Holder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such Holder on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 2.7(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 does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c), no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution omission from any Person who was not guilty of such fraudulent misrepresentation. The indemnity documents in reliance upon and contribution provisions contained in this Section 2.7 are in addition to any liability which the indemnifying Person may otherwise have conformity with written information furnished to the indemnified Persons referred to aboveCompany by any Holder specifically for use therein.
Appears in 1 contract
Samples: Registration Rights Agreement (Hartford Financial Services Group Inc/De)
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Article II, the Company agrees to will indemnify and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a "Controlling Person")), from and against any and all losses, claims, damages, expenses and liabilities, joint or several (including any reasonable 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, as the same are incurred), to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading in light of the circumstances under which such statements were made, or sale of such securities, (iii) any violation by the Company of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company will not be obligated to indemnify any party to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by or on behalf of such party expressly for use in such registration statement.
(b) Each Selling Holder will indemnify and hold harmless the Company (including its directors, officers, employees and agents), each Personunderwriter and each other Holder (including its partners (including partners of partners and stockholders of such partners), if anyand directors, officers, employees and agents of any of them, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (including any reasonable investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or actions proceeding or proceedingsany claim asserted, whether commenced or threatened, in respect thereof) (collectively, "Claims"as the same are incurred), to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar as such Claims arise out of at common law or are based upon, or are caused by otherwise with respect to any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), information furnished in writing to the Company by such Selling Holder expressly for use in such registration statement or any omission or alleged omission to state therein in such information a material fact required to be stated therein in it or necessary to make the statements therein in it not misleading, or a violation by the Company misleading in light of the Securities Act or any state securities law, or any rule or regulation promulgated circumstances under the Securities Act or any state securities law, or any other law applicable to the Company relating to any which such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holderstatements were made. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understoodno event, however, that shall the Company shall not, in connection with such action or similar or related actions or proceedings arising out liability of a Selling Holder for indemnification under this Section 2.4(b) exceed the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, net proceeds received by such Purchaser Selling Holder from the its sale or other disposition of his or its Restricted Registrable Securities covered by under such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a)registration statement.
(c) If the indemnification provided for in this Section 2.7 2.4(a) or (b) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 2.4, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses (i) liabilities in such proportion as is appropriate to reflect (i) the relative benefits received by the Company on Company, the one hand other Selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted the Registrable Securities, or (ii) if such 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 Company Company, the other Selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as and (iii) any other relevant equitable considerations. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesSelling Holders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c2.4(c) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Selling Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this Section 2.4(c) in excess of the amount by which the dollar amount of net proceeds received by such Selling Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(d) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 2.4 shall 11 be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification obligations set forth in this Section 2.4 shall not apply to amounts paid by the indemnified party in any settlement that is effected without the consent of the party from whom indemnification sought, which consent shall not be unreasonably withheld. The indemnification and contribution provided for in this Section 2.4 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of such indemnified party, which consent shall not be unreasonably withheld, consent to entry of any judgment or enter into any settlement which 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.
(e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in an underwriting agreement entered into in connection with an underwritten public offering are in addition to any liability which conflict with the indemnifying Person may otherwise have to provisions of this Agreement, the indemnified Persons referred to aboveprovisions in such underwriting agreement shall control.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless each Initial Purchaser, each Holder, each person (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each a “Controlling Person”), if any, who controls (any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), Act and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter Initial Purchaser, the Holders or any controlling Controlling Person (any Person referred to in clause (ieach, a “Holder Indemnified Party”), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all lossesloss, claimsdamage, damagesexpense, liabilitiesliability, judgments claim or expenses, joint or several (or any actions or proceedings, whether commenced or threatened, in respect thereofthereof (including the reasonable cost of investigation) (collectively, "Claims"), to which such indemnified Person Holder Indemnified Party may incur or become subject to under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwise, insofar as such Claims arise loss, damage, expense, liability, claim or action arises out of or are is based upon, or are caused by upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus (Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto)thereto or in any preliminary prospectus, or 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 violation by 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 such statements were made, not misleading, and the Company of shall reimburse, as incurred, the Securities Act Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any state securities lawsuch loss, damage, expense, liability, claim or any rule or regulation promulgated under the Securities Act or any state securities lawaction in respect thereof; provided, or any other law applicable to however, that the Company relating shall not be required to provide any indemnification pursuant to this Section 6(a) in any such registration or qualification, except case insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by loss, damage, expense, liability, claim or action arises out of or is based upon any such untrue statement or omission or alleged untrue statement or omission that is based upon of a material fact contained in, or omitted from, and in conformity with information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person an Initial Purchaser or a Holder to the Company expressly for use thereinin, any Shelf Registration Statement or any Prospectus; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understoodprovided further, however, that the Company shall not, in connection with such action or similar or related actions or proceedings arising out of the same general allegations or circumstances, this indemnity agreement will be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified Persons, liability which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees may otherwise have to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingHolder Indemnified Party.
(b) Each Holder of Restricted Securities covered by any Registration Statement agreesHolder, severally and not jointly, agrees to indemnify indemnify, defend and hold harmless the Company and Company, its directors, officers officers, employees and any Person controlling (person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (A) the Companyany untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i“Holder Information”) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information, which material fact was not contained in such Holder Information, and which material fact was either required to be stated in any Shelf Registration Statement or Prospectus or necessary to make such Holder Information not misleading, or (iiB) a sale, by such Holder pursuant to a Shelf Registration Statement in or with respect to which such Holder is named as a selling securityholder, of Registrable Securities during a Suspension Period, provided that the Company shall have theretofore provided such Holder a Suspension Notice in accordance with Section 3(k), or (C) a public sale of Registrable Securities by such Holder without delivery, if required by the Securities Act, of the most recent applicable Prospectus provided to such Holder by the Company pursuant to Section 3(i) or Section 2(d)(i)(C), provided the Company shall have theretofore provided such Holder with copies of such Prospectus in a timely manner so as to permit such delivery; and, subject to the extent of limitation set forth in the gross proceedsimmediately preceding clause, if anyeach Holder shall reimburse, received by such Purchaser from as incurred, the sale Company for any legal or other disposition of his or its Restricted Securities covered expenses reasonably incurred by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. 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, pursuant to the Shelf Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statementpursuant to either Section 6(a) or Section 6(b), such Holder person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the rights right to employ its own counsel in any such case, but the fees and duties given expenses of such counsel shall be at the Company expense of such Indemnified Party unless the employment of such counsel shall have been authorized in Section 2.7(awriting by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (except in which case such Indemnifying Party shall not have the right to direct that portion of the Holder defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of 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 required liable for the 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 assume such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the defense thereof)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 Company or its directors or officers or such controlling Person 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 counsel as contemplated by the rights second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and duties (iii) such Indemnified Party shall have given such Indemnifying Party at least thirty (30) days’ prior notice of its intention to each Holder settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement 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 Section 2.7(a)such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such Indemnified Party.
(cd) If the indemnification provided for in this Section 2.7 6 is unavailable to an indemnified party Indemnified Party under Section 2.7(a6(a) or (b) (other than by reason of exceptions provided in those Sections) Section 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expenses actions referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)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, judgments claims or expenses actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and by the Holder Holders or the Initial Purchasers, on the other hand hand, from sale the offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, on the one hand, and such Holder of the Holders or the Initial Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expensesactions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of such Holder the Holders or the Initial Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder the Holders or the Initial Purchasers and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments expenses, liabilities, claims and expenses actions referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. Proceeding.
(e) The Company Company, the Holders and each Holder of Restricted Securities covered by any Registration Statement the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c) 6 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 does not take into account of the equitable considerations referred to in the immediately preceding paragraphSection 6(d) above. Notwithstanding the provisions of this Section 2.7(c)6, no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount in excess of the amount by which the dollar amount of proceeds received total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder upon were offered to the sale of the Restricted Securities public exceeds the amount of any damages which such Holder 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 misrepresentations 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. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 2.7 are 6 shall remain operative and in addition to full force and effect regardless of (i) any liability which termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnifying Person may otherwise have to Initial Purchasers or any person controlling any Holder or Initial Purchaser, or the indemnified Persons referred to aboveCompany, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless each Initial Purchaser, each Holder, each person (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each a "Controlling Person"), if any, who controls (any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), Act and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter Initial Purchaser, the Holders or any controlling Controlling Person (any Person referred to in clause (i)each, (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified PersonIndemnified Party"), to the fullest extent lawful, from and against any and all lossesloss, claimsdamage, damagesexpense, liabilitiesliability, judgments claim or expenses, joint or several (or any actions or proceedings, whether commenced or threatened, in respect thereofthereof (including the reasonable cost of investigation) (collectively, "Claims"), to which such indemnified Person Indemnified Party may incur or become subject to under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwise, insofar as such Claims arise loss, damage, expense, liability, claim or action arises out of or are is based upon, or are caused by upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus (Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto)thereto or in any preliminary prospectus, or 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 violation by 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 such statements were made, not misleading, and the Company of shall reimburse, as incurred, the Securities Act Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any state securities lawsuch loss, damage, expense, liability, claim or any rule or regulation promulgated under the Securities Act or any state securities lawaction in respect thereof; provided, or any other law applicable to however, that the Company relating shall not be required to provide any indemnification pursuant to this Section 6(a) in any such registration or qualification, except case insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by loss, damage, expense, liability, claim or action arises out of or is based upon any such untrue statement or omission or alleged untrue statement or omission that is based upon of a material fact contained in, or omitted from, and in conformity with information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person an Initial Purchaser or a Holder to the Company expressly for use therein; (y) with respect to the preliminary in, any Shelf Registration Statement or any Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to including information provided by such Holder in accordance with this Agreement a Notice and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omissionQuestionnaire; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understoodprovided further, however, that the Company shall not, in connection with such action or similar or related actions or proceedings arising out of the same general allegations or circumstances, this indemnity agreement will (A) be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all liability which the indemnified Persons, which firm shall be (x) designated by Company may otherwise have to such indemnified Persons; Indemnified Party and (yB) reasonably satisfactory not apply to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liabilityexpense, judgment liability or expense claim arising from an offer or sale, occurring during a Suspension Period, of Registrable Securities by reason of any settlement of any action effected a Holder to whom the Company theretofore provided a Suspension Notice in accordance with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party theretoSection 3(i), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agreesHolder, severally and not jointly, agrees to indemnify indemnify, defend and hold harmless the Company and Company, its directors, officers officers, employees and any Person controlling (person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a "Company Indemnified Party") from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (A) the Companyany untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i"Holder Information") with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, and or in any amendment or supplement thereto, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information required to be stated in any Shelf Registration Statement or Prospectus, or any amendment or supplement thereto, or necessary to make such Holder Information not misleading, (iiB) a sale, by such Holder pursuant to a Shelf Registration Statement in or with respect to which such Holder is named as a selling security holder, of Registrable Securities during a Suspension Period, provided that the Company shall have theretofore provided such Holder a Suspension Notice in accordance with Section 3(i), or (C) a public sale of Registrable Securities by such Holder without delivery, if required by the Securities Act, of the most recent applicable Prospectus provided to such Holder by the Company pursuant to Section 3(g) or Section 2(d)(i)(C); and, subject to the extent of limitation set forth in the gross proceedsimmediately preceding clause, if anyeach Holder shall reimburse, received by such Purchaser from as incurred, the sale Company for any legal or other disposition of his or its Restricted Securities covered expenses reasonably incurred by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. 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, pursuant to the Shelf Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a "Proceeding") is brought against any person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statementpursuant to either Section 6(a) or Section 6(b), such Holder person (the "Indemnified Party") shall promptly notify the person against whom such indemnity may be sought (the "Indemnifying Party") in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the failure to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise, except to the extent such failure to notify materially prejudices such Indemnifying Party. Such Indemnified Party shall have the rights right to employ its own counsel in any such case, but the fees and duties given expenses of such counsel shall be at the Company expense of such Indemnified Party unless the employment of such counsel shall have been authorized in Section 2.7(awriting by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (except in which case such Indemnifying Party shall not have the right to direct that portion of the Holder defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of 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 required liable for the 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 assume such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the defense thereof)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 Company or its directors or officers or such controlling Person 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 counsel as contemplated by the rights second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and duties (iii) such Indemnified Party shall have given such Indemnifying Party at least thirty (30) days' prior notice of its intention to each Holder settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement 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 Section 2.7(a)such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such Indemnified Party.
(cd) If the indemnification provided for in this Section 2.7 6 is unavailable to an indemnified party Indemnified Party under Section 2.7(a6(a) or (b) (other than by reason of exceptions provided in those Sections) Section 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expenses actions referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)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, judgments claims or expenses actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and by the Holder Holders or the Initial Purchasers, on the other hand hand, from sale the offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, on the one hand, and such Holder of the Holders or the Initial Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expensesactions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of such Holder the Holders or the Initial Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder the Holders or the Initial Purchasers and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments expenses, liabilities, claims and expenses actions referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. Proceeding.
(e) The Company Company, the Holders and each Holder of Restricted Securities covered by any Registration Statement Initial Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c) 6 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 does not take into account of the equitable considerations referred to in the immediately preceding paragraphSection 6(d) above. Notwithstanding the provisions of this Section 2.7(c)6, no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount in excess of the amount by which the dollar amount of proceeds received total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder upon were offered to the sale of the Restricted Securities public exceeds the amount of any damages which such Holder 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 misrepresentations 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. The Holders' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 2.7 are 6 shall remain operative and in addition to full force and effect regardless of (i) any liability which termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or any Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the indemnifying Person may otherwise have to Company, or the indemnified Persons referred to aboveCompany's officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Samples: Registration Rights Agreement (Antigenics Inc /De/)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless (i) each Holder covered by any Registration Statementthe Holder, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Personperson, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such the Holder or underwriter (any of the Persons persons referred to in this clause (iii) being hereinafter referred to as a "controlling Personperson"), ) and (iv) the respective officers, directors, partners, employees, representatives and agents of any such the Holder or underwriter or any controlling Person person (any Person person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise out of or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such the Holder sold Securities to a Person person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such the Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv2.2(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, counsel or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; Persons and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each The Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, agrees to indemnify and hold harmless the Company and its directors, officers and any Person person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of eacheach person, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such the Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser Holder from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statementthe Holder, such Holder shall have the rights and duties given the Company in Section 2.7(a2.6(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person person shall have the rights and duties given to each the Holder by Section 2.7(a2.6(a).
(c) If the indemnification provided for in this Section 2.7 2.6 is unavailable to an indemnified party under Section 2.7(a2.5(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)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, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, Securities or (ii) if such 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 Company and such the Holder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such the Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such the Holder and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a2.6(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each the Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c2.6(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 does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c), no 2.6(c) the Holder (and none of its related indemnified Persons) shall not be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentations (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. The indemnity indemnity, and contribution provisions contained in this Section 2.7 2.6 are in addition to any liability which the indemnifying Person person may otherwise have to the indemnified Persons persons referred to above.
Appears in 1 contract
Samples: Registration Rights Agreement (Compost America Holding Co Inc)
Indemnification; Contribution. (a) The Incident to any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company agrees to will indemnify and hold harmless each underwriter, each Holder or Other Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a "Controlling Person")), 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, as the same are incurred), to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading, or sale of such securities, (iii) any violation by the Company of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company will not be liable to the -------- ------- extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder or Controlling Person expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder will indemnify and hold harmless each Personunderwriter, if anythe Company (including its directors, officers, employees and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees and agents of any of them, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar as such Claims arise out of at common law or are based uponotherwise to the same extent provided in the immediately preceding sentence; provided, or are caused by however, that no Selling Holder shall -------- ------- be required to indemnify any Person against any liability arising from any untrue or misleading statement or alleged untrue statement of a material fact omission contained in any Registration Statement preliminary prospectus if such deficiency is corrected in the final prospectus or Prospectus (or for any amendment or supplement thereto), or liability which arises out of the failure of any omission or alleged omission Person to state therein deliver a material fact prospectus as required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company Securities Act. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 4.4(a) exceed the lesser of (i) such Selling Holder's pro rata share of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as total of such losses, claims, damages, liabilities, judgments damages or expenses of any such indemnified Person; (x) are caused by any such untrue statement liabilities or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated proceeds received by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement Selling Holder from its sale of any Registrable Securities under such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingregistration statement.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 4.4(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 4.4, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand other Selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, the other Selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations; provided, however, that in the event of a registration statement filed in response to a demand under Section 4.2 and in which the Company does not register any shares of capital stock, the proportion of contribution by the Company, the other Selling Holders and the underwriters shall in all cases be governed by clause (ii) above. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesSelling Holders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c4.4(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Selling Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this Section 4.4(b) in excess of the amount by which lesser of (i) such Selling Holder's pro rata share of the dollar amount total of such losses, claims, damages or liabilities or (ii) the proceeds received by such Selling Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(c) The indemnity amount paid by an indemnifying party), or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 are in addition 4.4 shall be deemed to any liability which the indemnifying Person may otherwise have include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified Persons referred to aboveparty in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in this Section 4.4 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. No indemnifying party, in the defense of any such claim or litigation, shall enter into a consent of entry of any judgment or enter into a settlement without the consent of the indemnified party, which consent will not be unreasonably withheld.
Appears in 1 contract
Samples: Stockholders and Rights Agreement (Click Commerce Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless (i) each Holder covered by In connection with any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, who controls (within the meaning of Section 15 registration of the Securities Act or Section 20 Subject Shares pursuant to this Agreement, AerCap shall indemnify Subscriber and its affiliates and each of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the their respective officers, directors, members, partners, employeesstockholders, representatives employees and agents of any such Holder or underwriter or any controlling Person against all expenses (any Person referred to in clause (iincluding legal fees and expenses), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damageslosses, liabilities, judgments damages or expenses, joint or several liabilities (or actions or proceedingsin respect thereof), whether including any of the foregoing incurred in settlement of any litigation, commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise arising out of or are based upon, or are caused by on any untrue statement (or alleged untrue statement statement) of a material fact contained in any Registration Statement registration statement, prospectus, offering circular or Prospectus (other document, or any amendment or supplement thereto), incident to any registration, qualification or compliance, or 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 therein, in light of the circumstances in which they were made, not misleading, or a any violation (or alleged violation) by the Company AerCap of the Securities Act, the Exchange Act or any other United States federal or state securities law, law or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law thereunder applicable to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, AerCap in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action registration, qualification or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonablycompliance, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company AerCap will reimburse Subscriber and its directors, officers affiliates and any Person controlling (within the meaning each of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the their respective officers, directors, members, partners, employeesstockholders, representatives employees and agents of eachfor any legal and any other expenses reasonably incurred in connection with investigating, to the same extent as the foregoing indemnity from the Company to each of the indemnified Personspreparing or defending any claim, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by loss, damage, liability or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a)action.
(cb) If the indemnification provided for in this Section 2.7 9 is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) hereunder in respect of any lossesexpenses, claims, damageslosses, liabilities, judgments damages or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly), in lieu of indemnifying such indemnified party, AerCap shall contribute to the amount paid or payable by such indemnified party as a result of such expenses, claims, losses, claims damages, liabilities, judgments damages or expenses (i) liabilities in such proportion as is appropriate (i) to reflect the relative benefits received (or anticipated to be received) by the Company Austin, on the one hand hand, and the Holder received by Subscriber, on the other hand hand, from sale of Restricted Securities, or the transactions contemplated by the Amalgamation Agreement and this Agreement and (ii) ), if such the allocation provided by clause (i) above is not permitted by applicable lawunavailable for any reason, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above benefits, but also the relative fault of AerCap and the Company and such Holder indemnified party in connection with the statements actions or omissions which resulted in such lossesexpenses, claims, damageslosses, liabilities, judgments damages or expenses, liabilities as well as any other relevant equitable considerations. Benefits received (or anticipated to be received) by AerCap shall be deemed to be equal to the Transaction Value (as defined in the Engagement Letter) and the aggregate value of the Subject Shares sold to Subscriber under this Agreement, and benefits received by Subscriber shall be deemed to be equal to the Transaction Fee paid to Subscriber. The relative fault of AerCap and the Company on the one hand and of such Holder on the other indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement action or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.7(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 the immediately preceding paragraphthis Section 9(b). Notwithstanding anything to the provisions of this Section 2.7(c), no Holder (and none of its related indemnified Persons) shall be required to contributecontrary, in the aggregate, no event shall any amount indemnified party be responsible under this paragraph for any amounts in excess of the amount by which the dollar amount of proceeds Transaction Fee actually received by such Holder upon Subscriber.
(c) The indemnification provided by this Section 9 shall survive the sale resale by Subscriber of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution provisions contained in this Section 2.7 are in addition to any liability which the indemnifying Person may otherwise have to the indemnified Persons referred to aboveSubject Shares.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to will indemnify and hold harmless each Agent and its respective affiliates (ias such term is defined in Rule 501(b) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, who controls (within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act) any such Holder or underwriter Regulations (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"each, an “Affiliate”), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, damages or liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person Agent and its respective Affiliates may become subject subject, under either Section 15 of the Securities Act or Section 20 of the Exchange 1933 Act or otherwise, insofar as such Claims losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon, or are caused by any upon an untrue statement or alleged untrue statement of a material fact contained in any the Registration Statement or Prospectus (the Prospectus, or any amendment or supplement thereto), any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Shares, including any road show or investor presentations made to investors by the Company, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the 1933 Act or 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 not misleading, and will reimburse the Agents and their respective Affiliates for any legal or a violation other expenses (including the fees and disbursements of counsel chosen by the Agents) reasonably incurred by such Agent and its respective Affiliates in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of the Securities Act or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with any state securities law, or information relating to any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable Agent furnished to the Company relating in writing by such Agent expressly for use therein, it being understood and agreed that the only such information furnished by the Agents consists of the information described as such in in Section 14 hereof.
(b) Each Agent, severally and not jointly, will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to any such registration which the Company may become subject, under the 1933 Act or qualificationotherwise, except insofar as such losses, claims, damagesdamages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus, liabilitiesor any amendment or supplement thereto or any Issuer Free Writing Prospectus, judgments or expenses arise out of any 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 not misleading, in each case to the extent, but only to the extent, that such indemnified Person; (x) are caused by any such untrue statement or alleged untrue statement or omission or alleged untrue statement omission was made in the Registration Statement or omission that is based the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person Agent expressly for use therein; (y) with respect to , it being understood that the preliminary Prospectus, result from the fact that only such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy information furnished by any Agent consists of the Prospectus, as amended or supplemented, if information set forth in Section 14 hereof; and will reimburse the Company shall have previously furnished copies thereof to for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such Holder in accordance with this Agreement and said Prospectus, action or claim as amended or supplemented, would have corrected such untrue statement or omission; or expenses are incurred.
(zc) as a result of the use Promptly after receipt by an indemnified Person party under subsection (a) or (b) above of notice of the commencement of any Prospectus whenaction, upon receipt of such indemnified party shall, if a notice from claim in respect thereof is to be made against the Company indemnifying party under such subsection, notify the indemnifying party in writing of the existence of commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted liability which it may have to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of party otherwise than under such securities by such Holdersubsection. In case any such action shall be brought or asserted against any indemnified party and it shall notify the indemnifying party of the indemnified Persons commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with respect any other indemnifying party similarly notified, to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such , with counsel satisfactory to such indemnified Person party (who shall have not, except with the right consent of the indemnified party, be counsel to employ separate counsel in any the indemnifying party), and, after notice from the indemnifying party to such action and indemnified party of its election so to participate in assume the defense thereof, but the fees and indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall notparty, in connection with such action or similar or related actions or proceedings arising out the defense thereof other than reasonable costs of the same general allegations or circumstancesinvestigation. No indemnifying party shall, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall notindemnified party, without effect the prior written consent of each indemnified Person, settle settlement or compromise of, or consent to the entry of any judgment on or otherwise seek to terminate with respect to, any pending or threatened action, claim, litigation action or proceeding claim in respect of which indemnification or contribution may be sought hereunder (whether or not any the indemnified Person party is a an actual or potential party thereto), to such action or claim) unless such settlement, compromise, consent compromise or termination judgment (i) includes an unconditional release of each the indemnified Person party from all liability arising out of such actionaction or claim and (ii) does not include a statement as to, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agreesan admission of, severally and not jointlyfault, culpability or a failure to indemnify and hold harmless the Company and its directorsact, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statementindemnified party. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but An indemnifying party shall not be required to assume indemnify an indemnified party for any amount paid or payable by the defense thereof)indemnified party in the settlement of any action, proceeding or investigation without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and the Company against any loss or its directors liability by reason of such settlement or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a)judgment.
(cd) If the indemnification provided for in this Section 2.7 6 is unavailable to or insufficient to hold harmless an indemnified party under Section 2.7(asubsection (a) or (b) (other than by reason of exceptions provided in those Sections) above in respect of any losses, claims, damages, liabilities, judgments damages or expenses liabilities (or actions in respect thereof) referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly), 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 damagesclaims, liabilities, judgments damages or expenses liabilities (ior actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand hand, and the Holder Agents, on the other hand hand, from sale the offering of Restricted Securitiesthe Shares. If, or (ii) if such however, the allocation provided by clause (i) above the immediately preceding sentence is not permitted by applicable lawlaw or if the indemnified party failed to give the notice required under subsection (c) above, 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 the such relative benefits referred to in clause (i) above but also the relative fault of the Company Company, as the case may be, on the one hand, and such Holder the Agents, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments damages or expensesliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of benefits received by the Company Company, as the case may be, on the one hand hand, and of such Holder the Agents, on the other hand, shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company, as the case may be, bear to the total underwriting discounts and commissions received by the Agents, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, as the case may be, on the one hand or by such Holder the Agents, on the other hand, and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement the Agents agree that it would not be just and equitable if contribution pursuant to this Section 2.7(csubsection (d) 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 does not take into account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the immediately preceding paragraphlosses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred and documented by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 2.7(csubsection (d), no Holder (and none of its related indemnified Persons) the Agents shall not be required to contribute, in the aggregate, contribute any amount in excess of the amount by which the dollar amount of proceeds received total price at which the Shares sold by such Holder upon it and distributed to the sale of public were offered to the Restricted Securities public exceeds the amount of any damages which such Holder has the Agents have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentations The Agents’ obligations in this subsection (within the meaning of Section 11(fd) to contribute are several in proportion to their respective obligations and not joint.
(e) The obligations of the Securities Act) Company under this Section 6 shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution provisions contained in this Section 2.7 are in addition to any liability which the indemnifying Person Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the indemnified Persons referred Agents and each person, if any, who controls the Agents within the meaning of the 1933 Act and each Affiliate of the Agents; and the obligations of the Agents under this Section 6 shall be in addition to aboveany liability which the Agents may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company) and to each person, if any, who controls the Company within the meaning of the 1933 Act.
Appears in 1 contract
Indemnification; Contribution. (a) Indemnification by the Company. The Company agrees shall, without ------------------------------ limitation as to time, indemnify and hold harmless (i) harmless, to the full extent permitted by law, each Holder covered by any Registration Statementholder of Registrable Securities, (ii) the officers, directors, agents and employees of each other of them, each Person who participates as an underwriter in the offering or sale of controls each such securities, (iii) each Person, if any, who controls holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partnersagents and employees of each such controlling person and any financial or investment adviser (each, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified PersonIndemnified Party"), ----------------- to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expenses, joint or several (or actions or proceedings, proceedings (whether commenced or threatened) reasonable costs (including, in respect thereofwithout limitation, reasonable costs of preparation and reasonable attorneys' fees) and reasonable expenses (including reasonable expenses of investigation) (collectively, "ClaimsLosses"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwiseas incurred, insofar as such Claims arise arising out of ------ or are based upon, or are caused by upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement Statement, prospectus or Prospectus (form of prospectus or in any amendment or supplement thereto)supplements thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable except to the Company relating to any such registration extent that the same arise out of or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by such Indemnified Party or on behalf the related holder of any of such indemnified Person Registrable Securities expressly for use therein; therein or (yii) with respect any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration; provided, however, that the -------- ------- Company shall not be liable to any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls such underwriters within the meaning of the Securities Act to the extent that any such Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary Prospectus, result from prospectus if (i) such Person failed to send or deliver a copy of the fact that such Holder sold Securities to a Person to whom there was not sent or given, at prospectus with or prior to the delivery of written confirmation of the sale by such salePerson to the Person asserting the claim from which such Losses arise, a copy of (ii) the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission; or , and (ziii) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company has complied with its obligations under Section 5.4(c). Each -------------- indemnity and reimbursement of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity costs and expenses shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly), 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, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 Company and such Holder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 2.7(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 does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c), no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution provisions contained in this Section 2.7 are in addition to any liability which the indemnifying Person may otherwise have to the indemnified Persons referred to above.
Appears in 1 contract
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Agreement, and subject to applicable law, the Company agrees to will indemnify and hold harmless each underwriter, each Holder of Registrable Securities (including its respective directors, officers, employees and agents) so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (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 under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading, or sale of such securities, (iii) each Personany violation or alleged violation by the Company of the Securities Act, any state securities or 'blue sky' laws or any rule or regulation thereunder in connection with such registration, provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on (A) an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Holder or controlling person expressly for use in such registration statement or (B) any preliminary prospectus, to the extent that any such loss, claim, damage or liability results solely from an untrue statement of a material fact contained in, or the omission of a material fact from, such preliminary prospectus which untrue statement or omission was corrected in the final prospectus, if anythe Company shall sustain the burden of proving that a Holder sold Registrable Securities to the person alleging such loss, claim, damage or liability without sending or giving, at or prior to the written confirmation of such sale, a copy of the final prospectus. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Holder expressly for use in such registration statement, such Holder will indemnify and hold harmless each underwriter, the Company (including its directors, officers, employees and agents), each other Holder of Registrable Securities (including its respective directors, officers, employees and agents) so registered, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwise, insofar as such Claims arise out of other federal or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.5
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 2.06(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 2.06, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses (i) liabilities in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 Company Company, the selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on Company, the one hand selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the selling Holders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesHolders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c2.06(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraphsentences. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this Section 2.06(b) in excess of the amount lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Registrable Securities sold under such registration statement which is being sold by which such Holder or (ii) the dollar amount of proceeds received by such Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(fl l(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. .
(c) The indemnity indemnification and contribution provisions contained provided for in this Section 2.7 are 2.06 will remain in addition to full force and effect regardless of any liability which the indemnifying Person may otherwise have to investigation made by or on behalf of the indemnified Persons referred to aboveparties or any officer, director, employee, agent or controlling person of the indemnified parties.
Appears in 1 contract
Indemnification; Contribution. (a) The In connection with any registration of Registrable Securities pursuant to this Article III, the Company agrees to indemnify and hold harmless (i) harmless, to the fullest extent permitted by Law, each Holder covered by any Registration Statementof the Investors and their respective Affiliates, (ii) the Investors’ Representative and each other of its Affiliates, each Person who participates as controls an underwriter in Investor or the offering or sale of such securities, (iii) each Person, if any, who controls (Investors’ Representative within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective directors, officers, directorsemployees, partners, employeesaffiliates, members, managers, shareholders, assignees and representatives and agents of any such Holder or underwriter or any controlling Person each of the foregoing (any Person referred to in clause (i)collectively, (ii), (iiithe “Indemnified Persons”) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expensesjudgments, actions and expenses (including reasonable attorneys’ fees) (“Losses”) joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise arising out of or are based upon, or are caused by upon (i) any untrue statement or alleged untrue statement of a material fact contained in any part of any Registration Statement Statement, any preliminary or Prospectus (final prospectus or other disclosure document used in connection with the Registrable Securities, any Issuer FWP or any amendment or supplement thereto)to any of the foregoing, or 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, in the light of the circumstances under which they were made) not misleading, misleading or a (ii) any violation or alleged violation by the Company of the Securities Act or any state securities lawof its Subsidiaries of any federal, state, foreign or any common law rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company or any of its Subsidiaries and relating to action or inaction in connection with any such registration registration, Registration Statement, other disclosure document or qualificationIssuer FWP; provided, except insofar as such however, that the Company will not be required to indemnify any Indemnified Person for any losses, claims, damages, liabilities, judgments judgments, actions or expenses of any such indemnified Person; (x) are caused by resulting from any such untrue statement or omission or alleged if such untrue statement or omission that is based upon was made in reliance on and in conformity with information relating with respect to any Indemnified Person furnished to the Company in writing by the Investors expressly for use therein.
(b) In connection with any Registration Statement, preliminary or final prospectus, or Issuer FWP, each Investor agrees to indemnify, severally and not jointly, the Company, its Directors, its officers who sign such Registration Statement and each Person, if any, who controls the Company (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as the foregoing indemnity from the Company to the Investors, but only with respect to information with respect to such indemnified Person Investor furnished to the Company in writing by such Investor expressly for use in such Registration Statement, preliminary or final prospectus, or Issuer FWP to the extent such information is included therein in reliance upon and in conformity with the information furnished to the Company by or on behalf of any of such indemnified Person Investor expressly for use therein; (y) with provided, however, that in no event shall any Investor’s liability pursuant to this Section 3.08 in respect of the offering to which such loss, claim, damages, liabilities, judgments, actions or expenses relate exceed an amount equal to the preliminary Prospectus, result proceeds to such Investor (after deduction of all Underwriters’ discounts and commissions) from such offering less the fact that amount of any damages which such Holder sold Securities Investor has otherwise been required to a Person to whom there was not sent or given, at or prior to the written confirmation pay by reason of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or information.
(zc) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any claim, action shall be brought or asserted against proceeding (including any governmental investigation) is instituted involving any Person in respect of the indemnified Persons with respect to which indemnity may be sought against the Companypursuant to Section 3.08(a) or (b), such Person (hereinafter called the “indemnified Person shall party”) will (i) promptly notify the Company and Person against whom such indemnity may be sought (hereinafter called the Company “indemnifying party”) in writing; provided, however, that the failure to give such notice shall not relieve the indemnifying party of its obligations pursuant to this Agreement except to the extent such indemnifying party has been prejudiced in any material respect by such failure; (ii) permit the indemnifying party to assume the defense thereofof such claim, action or proceeding with counsel reasonably satisfactory to the indemnified party to represent the indemnified party; and (iii) pay the fees and disbursements of such counsel related to such claim, action or proceeding. Such In any such claim, action or proceeding, any indemnified Person shall party will have the right to employ separate counsel in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel shall will be at the expense of such indemnified party (without prejudice to such indemnified party’s indemnity and other rights under the Charter, Bye-laws and applicable Law, if any) unless (A) the indemnifying party and the indemnified Person unless (i) party have mutually agreed to the employment retention of such counsel shall have been specifically authorized in writing by the Companycounsel, (ii) the Company shall have failed to assume the defense and employ counsel, or (iiiB) the named parties to any such claim, action or proceeding (including any implied impleaded parties) include both the indemnified Person and the Company indemnifying party and the indemnified Person shall have party and the indemnified party has been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available counsel, with a copy provided to the Company Company, that representation of both parties by the same counsel would be inappropriate due to actual or potential conflicting interests between them, (in which case C) the Company shall not have the right indemnifying party has failed to assume the defense of such action on behalf of claim and employ counsel reasonably satisfactory to the indemnified Person)party, it being understoodor (D) any such, howeverclaim, action or proceeding is a criminal or regulatory enforcement action. It is understood that the Company shall indemnifying party will not, in connection with such any claim, action or similar proceeding or related claims, actions or proceedings arising out of in the same general allegations or circumstancesjurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys for the indemnified parties (in addition to any local counsel) counsel at any time for all such indemnified parties) and that all such reasonable fees and expenses will be reimbursed reasonably promptly following a written request by an indemnified party stating under which clause of (A) through (C) above reimbursement is sought and delivery of documentation of such fees and expenses. In the case of the retention of any such separate firm for the indemnified Personsparties, which such firm shall will be (x) designated in writing by such the indemnified Persons; and (y) reasonably satisfactory to the Companyparties. The Company shall indemnifying party will not be liable for any settlement of any such claim, action or proceeding effected without the Company's prior its written consent, consent (which consent shall not be withheld unreasonablyunreasonably withheld), and but if such claim, action or proceeding is settled with such consent or if there has been a final non-appealable judgment for the Company plaintiff, the indemnifying party agrees to indemnify and hold harmless any the indemnified Person party from and against any loss, claim, damage, liability, judgment loss or expense liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party will have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by the third sentence of this Section 3.08(c), the indemnifying party agrees that it will be liable for any settlement of any action proceeding effected with the without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the Companyaforesaid request and (ii) such indemnifying party has not reimbursed the indemnified party in accordance with such request or reasonably objected in writing, on the basis of the standards set forth herein, to the propriety of such reimbursement prior to the date of such settlement. The Company shall notNo indemnifying party will, without the prior written consent of each the indemnified Personparty, settle or compromise or consent to the entry effect any settlement of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding (i) in respect of which indemnification any indemnified party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not any by such indemnified Person is a party thereto)party, unless such settlement, compromise, consent or termination settlement includes an unconditional release of each such indemnified Person party from all liability arising out on claims that are the subject matter of such actionproceeding or (ii) which involves the imposition of equitable remedies on the indemnified party or the imposition of any obligation on the indemnified party, claim litigation or proceedingother than as a result of the imposition of financial obligations for which the indemnified person will be indemnified hereunder.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(cd) If the indemnification provided for in this Section 2.7 3.08 from the indemnifying party is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) hereunder in respect of any losses, claims, damages, liabilities, judgments judgments, actions or expenses referred to thereinin this Section 3.08, then each applicable the indemnifying party (in the case of the Holders severally and not jointly)party, in lieu of indemnifying such indemnified party, shall will contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments judgments, actions or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by fault of the Company on indemnifying party and indemnified party in connection with the one hand and the Holder on the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other hand from sale of Restricted Securitiesrelevant equitable considerations, or (ii) if such the allocation provided by clause (i) above is not permitted by applicable lawLaw, in such proportion as is appropriate to reflect not only the relative benefits fault referred to in clause (i) above but also the relative fault benefit of the Company Company, on the one hand, and such Holder the Investors, on the other, in connection with the statements or omissions which that resulted in such losses, claims, damages, liabilities, judgments judgments, actions or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand such indemnifying party and of such Holder on the other shall indemnified party will be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been taken by, or relates to information supplied by the Company by, such indemnifying party or by such Holder indemnified party, and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionaction. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall will be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a3.08(c), any legal or other fees or expenses reasonably incurred by such party in connection with investigating any investigation or defending any action or claim. proceeding.
(e) The Company and each Holder of Restricted Securities covered by any Registration Statement parties agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c3.08(d) 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 the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c3.08(d), no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person guilty of “fraudulent misrepresentations 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. The indemnity Notwithstanding the provisions of Section 3.08(d) and contribution provisions contained in this Section 2.7 are 3.08(e), each Investor’s liability pursuant to Section 3.08(d) in addition respect of the offering to which such loss, claim, damages, liabilities, judgments, actions or expenses relate shall not exceed an amount equal to the proceeds to such Investor (after deduction of all Underwriters’ discounts and commissions) from such offering less the amount of any damages which such Investor has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Each Investor’s obligation to contribute pursuant to this Section 3.08 is several in proportion to the respective number of Registrable Securities held by such Investor hereunder and not joint.
(f) For purposes of this Section 3.08, each Indemnified Person shall have the same rights to contribution as such Investor, and each officer, Director and Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall have the same rights to contribution as the Company, subject in each case to the limitations set forth in the immediately preceding paragraph. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this Section 3.08, notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 3.08 or otherwise except to the extent that it has been prejudiced in any material respect by such failure. No party shall be liable for contribution with respect to any liability which action or claim settled without its written consent; provided, however, that such written consent was not unreasonably withheld.
(g) If indemnification is available under this Section 3.08, the indemnifying Person may otherwise have party will indemnify each indemnified party to the full extent provided in Sections 3.08(a) and (b) without regard to the relative fault of said indemnifying party or indemnified Persons referred to aboveparty or any other equitable consideration provided for in Section 3.08(d) or (e).
Appears in 1 contract
Samples: Shareholder Agreement (Genpact LTD)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Personperson, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons persons referred to in this clause (iii) being hereinafter referred to as a "controlling Personperson"), ) and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person person (any Person person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise out of or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; : (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; or (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, counsel or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; Persons and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of eacheach person, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a2.8(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person person shall have the rights and duties given to each Holder by Section 2.7(a2.8(a).
(c) If the indemnification provided for in this Section 2.7 2.8 is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly), 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, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, Securities or (ii) if such 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 Company and such Holder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a2.8(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c2.8(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 does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c), 2.8(c) no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentations (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. The indemnity indemnity, and contribution provisions contained in this Section 2.7 2.8 are in addition to any liability which the indemnifying Person person may otherwise have to the indemnified Persons persons referred to above.
Appears in 1 contract
Samples: Registration Rights Agreement (Florida Gaming Corp)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
(ai) The To the extent permitted by applicable law, the Company agrees to shall indemnify and hold harmless each Holder, and the partners, members, managers, officers, directors, employees, and stockholders of each such Holder; legal counsel, accountants and other advisors for each such Holder; any underwriter (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter defined in the offering or sale of Securities Act) for each such securities, (iii) Holder; and each Person, if any, who controls (such Holder or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expenses, liabilities and expenses (joint or several (or actions or proceedingsseveral), whether commenced or threatened, in respect thereof) including reasonable attorney’s fees and disbursements and reasonable expenses of investigation (collectively, "Claims"“Losses”), incurred by such Person pursuant to any actual or threatened action, suit, proceeding or investigation, or to which such indemnified Person any of the foregoing Persons may otherwise become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state laws, but only insofar as such Claims Losses arise out of or are based uponupon any of the following statements or omissions (collectively, or are caused by a “Violation”):
(1) any untrue statement or alleged untrue statement of a material fact contained in the registration statement, including any Registration Statement preliminary Prospectus or final Prospectus (or any amendment or supplement thereto)contained therein, or any amendments or supplements thereto; or
(2) the omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; provided, or a violation however, that the indemnification required by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable this Section 2(f)(i) shall not apply to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses amounts paid in settlement of any such indemnified Person; Loss if such settlement is effected without the consent of the Company (x) are caused by which consent shall not be unreasonably withheld), nor shall the Company be liable in any such untrue statement case for any such Loss to the extent that it arises out of or omission or alleged untrue statement or omission that is based upon a Violation which occurs in reliance upon and in conformity with information relating to such indemnified Person furnished in writing to the Company by or on behalf of a Holder or any of such indemnified Person underwriter expressly for use thereinin connection with such registration; (y) with respect and provided, further, that this indemnity shall not apply to the preliminary Prospectus, result from extent that any such Loss is based on an offer or Transfer of Registrable Securities during any period which the fact Company has notified the Holder that such Holder sold offers and Transfers must cease under the Agreement, including under Section 2(b), Section 2(c)(ii) or Section 2(c)(v).
(ii) To the extent permitted by applicable law, the Holders (severally and not jointly) shall indemnify and hold harmless the Company, each of the directors of the Company, each of the officers of the Company who shall have signed the Resale Registration Statement, each Person, if any, who controls the Company within the meaning of the Securities Act, and each officer, director, partner, and employee of such controlling Person, against any and all Losses incurred by such Person pursuant to a Person any actual or threatened action, suit, proceeding or investigation, or to whom there was not sent which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or givenother federal or state laws, at but only insofar as such Losses arise out of or prior are based upon any Violation, in each case to the written confirmation extent that such Violation arises out of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously is based upon information furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made writing by or on behalf of a Holder expressly for use in connection with such registration; provided, however, that any indemnified Person and indemnification required by this Section 2(f)(ii) shall survive not apply to amounts paid in settlement of any such Loss if such settlement is effected without the transfer of such securities by such Holder. In case any action shall be brought or asserted against any consent of the Holders (which consent shall not be unreasonably withheld) and in no event shall the amount of any indemnity obligation under this Section 2(f)(ii) exceed the gross proceeds from the applicable offering received by the Holders.
(iii) Promptly after receipt by an indemnified Persons with respect to party under this Section 2(f) of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which indemnity such indemnified party may be sought against the Companymake a claim under this Section 2(f), such indemnified Person party shall promptly notify deliver to the Company indemnifying party a written notice thereof and the Company indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereofthereof with counsel reasonably satisfactory to the indemnified party; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and disbursements and expenses (in each case, to the extent reasonable) to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. Such The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified Person party under this Section 2(f) to the extent, but only to the extent, of such prejudice but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 2(f). Any such indemnified party shall have the right to employ separate counsel in any such action action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense expenses of the such indemnified Person party unless (i) the employment of indemnifying party has agreed to pay such counsel shall have been specifically authorized in writing by the Company, fees and expenses or (ii) the Company indemnifying party shall have failed to promptly assume the defense and employ counselof such action, claim or proceeding or (iii) the named parties to any such action action, claim or proceeding (including any implied impleaded parties) include both the such indemnified Person party and the Company indemnifying party, and the such indemnified Person party shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which that are different from or additional in addition to those available to the Company indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party could not faithfully represent the indemnified party (in which case case, if such indemnified party notifies the Company indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action action, claim or proceeding on behalf of the such indemnified Person)party, it being understood, however, that the Company indemnifying party shall not, in connection with any one such action action, claim or proceeding or separate but substantially similar or related actions 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 (in addition to any together with appropriate local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto)parties, unless in the reasonable judgment of such settlement, compromise, consent or termination includes an unconditional release indemnified party a conflict of each interest may exist between such indemnified Person from all liability arising out party and any other of such indemnified parties with respect to such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally in which event the indemnifying party shall be obligated to pay the reasonable fees and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf expenses of such Holder expressly for use in any Registration Statement additional counsel or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(acounsels).
(civ) If the indemnification provided for in required by this Section 2.7 2(f) from the indemnifying party is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) hereunder in respect of any losses, claims, damages, liabilities, judgments or expenses Losses referred to therein, then each applicable in this Section 2(f):
(1) the indemnifying party (in the case of the Holders severally and not jointly)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, judgments or expenses (i) Losses in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 Company indemnifying party and such Holder indemnified parties in connection with the statements or omissions which actions that resulted in such losses, claims, damages, liabilities, judgments or expensesLosses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand such indemnifying party and of such Holder on the other indemnified parties shall be determined by reference to, among other things, whether the untrue any Violation has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company by, such indemnifying party or by such Holder indemnified parties, and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionViolation. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments and expenses Losses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a2(f)(i), 2(f)(ii) and 2(f)(iii), any legal or other fees or expenses reasonably incurred by such party in connection with investigating any investigation or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement proceeding;
(2) the parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c2(f)(iv) 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 does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c2(f)(iv)(1), no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f11(e) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. .
(v) The indemnity obligations of the Company and contribution provisions contained in the Holders under this Section 2.7 are in addition to 2(f) shall survive the completion of any liability which the indemnifying Person may otherwise have offering of Registrable Securities pursuant to the indemnified Persons referred to aboveregistration statement under this Agreement, and otherwise.
Appears in 1 contract
Samples: Registration Rights Agreement (UniTek Global Services, Inc.)
Indemnification; Contribution. (a) The 4.4.1 Incident to any registration statement referred to in this Section 4, and subject to applicable law, the Company agrees to will indemnify and hold harmless (i) each Holder covered by who offers or sells any Registration Statementsuch Registrable Securities in connection with such registration statement (including its directors, officers, employees and agents), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a "Controlling Person"), 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 under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (a) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (iib) each other any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in it not misleading, or any violation by the Company of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, -------- ------- that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such Holder or Controlling Person who participates as an underwriter expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the offering or sale of information furnished in writing to the Company by such securitiesHolder expressly for use in such registration statement, such Holder will indemnify and hold harmless the Company (iii) including its directors, officers, employees and agents), and each Person, if any, person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwise, insofar as such Claims arise out of other federal or are based upon, state statutory law or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or givenregulation, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on common law or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent provided in the immediately preceding sentence. In no event, however, shall the liability of a Holder for indemnification under this Section 4.4.1 in its capacity as the foregoing indemnity from the Company to each such (and not in its capacity as an officer or director of the indemnified Persons, but only (iCompany) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to exceed the extent of the gross proceeds, if any, proceeds received by such Purchaser Holder from the its sale or other disposition of his or its Restricted Registrable Securities covered by under such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a)registration statement.
(c) 4.4.2 If the indemnification provided for in this Section 2.7 4.4.1 above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 4.4, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (ia) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand hand, and the Holder Holders on the other hand other, from sale the offering of Restricted Securities, the Registrable Securities or (iib) if such the allocation provided by clause (ia) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (ia) above but also the relative fault of the Company Company, on the one hand, and such Holder the Holders, on the other, in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on and the one hand and of such Holder on the other Holders shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder the Holders and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement the Holders agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c) 4.4.2 were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this Section 4.4.2 in excess of the amount by which the dollar amount of proceeds received by such Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
4.4.3 The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 4.4 shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in addition this Section 4.4 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties.
4.4.4 Any person entitled to indemnification hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification, but the failure to do so shall not relieve the indemnifying party from any liability, except to the extent it is actually prejudiced by the failure or delay in giving such notice, and (ii) unless in such indemnified party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party will not be subject to any liability which the indemnifying Person may otherwise have to for any settlement made by the indemnified Persons referred to aboveparty without its consent (but such consent will not be unreasonably withheld).
Appears in 1 contract
Indemnification; Contribution. (a) The In connection with any registration of Registrable Securities pursuant to this Article II, the Company agrees to indemnify and hold harmless (i) harmless, to the fullest extent permitted by applicable Law, each Holder covered by any Registration Statementof the CB Investors and their respective Affiliates, (ii) the CB Investors’ Representative and each other of its respective Affiliates, and each Person who participates as an underwriter in controls a CB Investor or the offering or sale of such securities, (iii) each Person, if any, who controls (CB Investors’ Representative within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective directors, officers, directorsemployees, partners, employeesaffiliates, members, managers, shareholders, assignees and representatives and agents of any such Holder or underwriter or any controlling Person each of the foregoing (any Person referred to in clause (i)collectively, (ii), (iiithe “Indemnified Persons”) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expensesjudgments, actions and expenses (including reasonable attorneys’ fees) (“Losses”) joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise arising out of or are based upon, or are caused by upon (i) any untrue statement or alleged untrue statement of a material fact contained in any part of any Registration Statement Statement, any preliminary or Prospectus (final prospectus or other disclosure document used in connection with the Registrable Securities, any Issuer FWP or any amendment or supplement thereto)to any of the foregoing, or 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, in the light of the circumstances under which they were made) not misleading, misleading or a (ii) any violation or alleged violation by the Company of the Securities Act or any state securities lawof its Subsidiaries of any federal, state, foreign or any common law rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company or any of its Subsidiaries and relating to action or inaction in connection with any such registration registration, Registration Statement, other disclosure document or qualificationIssuer FWP; provided, except insofar as such losseshowever, claims, damages, liabilities, judgments or expenses of that the Company will not be required to indemnify any such indemnified Person; (x) are caused by Indemnified Person for any Losses resulting from any such untrue statement or omission or alleged if such untrue statement or omission that is based upon was made in reliance on and in conformity with information relating with respect to any Indemnified Person furnished to the Company in writing by the CB Investors expressly for use therein.
(b) In connection with any Registration Statement, preliminary or final prospectus, or Issuer FWP, each Investor agrees to indemnify, severally and not jointly, the Company, its Directors, its officers who sign such Registration Statement and each Person, if any, who controls the Company (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as the foregoing indemnity from the Company to the Investors, but only with respect to information with respect to such indemnified Person CB Investor furnished to the Company in writing by such CB Investor expressly for use in such Registration Statement, preliminary or final prospectus, or Issuer FWP to the extent such information is included therein in reliance upon and in conformity with the information furnished to the Company by or on behalf of any of such indemnified Person CB Investor expressly for use therein; (y) with provided, however, that in no event shall any Investor’s liability pursuant to this Section 2.08 in respect of the offering to which such loss, claim, damages, liabilities, judgments, actions or expenses relate exceed an amount equal to the preliminary Prospectus, result proceeds to such CB Investor (after deduction of all Underwriters’ discounts and commissions) from such offering less the fact that amount of any damages which such Holder sold Securities Investor has otherwise been required to a Person to whom there was not sent or given, at or prior to the written confirmation pay by reason of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or information.
(zc) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any claim, action shall be brought or asserted against proceeding (including any governmental investigation) is instituted involving any Person in respect of the indemnified Persons with respect to which indemnity may be sought against the Companypursuant to Section 2.08(a) or (b), such Person (hereinafter called the “indemnified Person shall promptly party”) will (i)promptly notify the Company and Person against whom such indemnity may be sought (hereinafter called the Company “indemnifying party”) in writing; provided, however, that the failure to give such notice shall not relieve the indemnifying party of its obligations pursuant to this Agreement except to the extent such indemnifying party has been prejudiced in any material respect by such failure; (ii) permit the indemnifying party to assume the defense thereofof such claim, action or proceeding with counsel reasonably satisfactory to the indemnified party to represent the indemnified party; and (iii) pay the fees and disbursements of such counsel related to such claim, action or proceeding. Such In any such claim, action or proceeding, any indemnified Person shall party will have the right to employ separate counsel in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel shall will be at the expense of such indemnified party (without prejudice to such indemnified party’s indemnity and other rights under the Charter, Bylaws and applicable Law, if any) unless (A) the indemnifying party and the indemnified Person unless (i) party have mutually agreed to the employment retention of such counsel shall have been specifically authorized in writing by the Companycounsel, (ii) the Company shall have failed to assume the defense and employ counsel, or (iiiB) the named parties to any such claim, action or proceeding (including any implied impleaded parties) include both the indemnified Person and the Company indemnifying party and the indemnified Person shall have party and the indemnified party has been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available counsel, with a copy provided to the Company Company, that representation of both parties by the same counsel would be inappropriate due to actual or potential conflicting interests between them, (in which case C) the Company shall not have the right indemnifying party has failed to assume the defense of such action on behalf of claim and employ counsel reasonably satisfactory to the indemnified Person)party, it being understoodor (D) any such, howeverclaim, action or proceeding is a criminal or regulatory enforcement action. It is understood that the Company shall indemnifying party will not, in connection with such any claim, action or similar proceeding or related claims, actions or proceedings arising out of in the same general allegations or circumstancesjurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys for the indemnified parties (in addition to any local counsel) counsel at any time for all such indemnified parties) and that all such reasonable fees and expenses will be reimbursed reasonably promptly following a written request by an indemnified party stating under which clause of (A) through (C) above reimbursement is sought and delivery of documentation of such fees and expenses. In the case of the retention of any such separate firm for the indemnified Personsparties, which such firm shall will be (x) designated in writing by such the indemnified Persons; and (y) reasonably satisfactory to the Companyparties. The Company shall indemnifying party will not be liable for any settlement of any such claim, action or proceeding effected without the Company's prior its written consent, consent (which consent shall not be withheld unreasonablyunreasonably withheld), and but if such claim, action or proceeding is settled with such consent or if there has been a final non-appealable judgment for the Company plaintiff, the indemnifying party agrees to indemnify and hold harmless any the indemnified Person party from and against any loss, claim, damage, liability, judgment loss or expense liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party will have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by the third sentence of this Section 2.08(c), the indemnifying party agrees that it will be liable for any settlement of any action proceeding effected with the without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the Companyaforesaid request and (ii) such indemnifying party has not reimbursed the indemnified party in accordance with such request or reasonably objected in writing, on the basis of the standards set forth herein, to the propriety of such reimbursement prior to the date of such settlement. The Company shall notNo indemnifying party will, without the prior written consent of each the indemnified Personparty, settle or compromise or consent to the entry effect any settlement of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding (i) in respect of which indemnification any indemnified party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not any by such indemnified Person is a party thereto)party, unless such settlement, compromise, consent or termination settlement includes an unconditional release of each such indemnified Person party from all liability arising out on claims that are the subject matter of such actionproceeding or (ii) which involves the imposition of equitable remedies on the indemnified party or the imposition of any obligation on the indemnified party, claim litigation or proceedingother than as a result of the imposition of financial obligations for which the indemnified person will be indemnified hereunder.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(cd) If the indemnification provided for in this Section 2.7 2.08 from the indemnifying party is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) hereunder in respect of any losses, claims, damages, liabilities, judgments judgments, actions or expenses referred to thereinin this Section 2.08, then each applicable the indemnifying party (in the case of the Holders severally and not jointly)party, in lieu of indemnifying such indemnified party, shall will contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments judgments, actions or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by fault of the Company on indemnifying party and indemnified party in connection with the one hand and the Holder on the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other hand from sale of Restricted Securitiesrelevant equitable considerations, or (ii) if such the allocation provided by clause (i) above is not permitted by applicable lawLaw, in such proportion as is appropriate to reflect not only the relative benefits fault referred to in clause (i) above but also the relative fault benefit of the Company Company, on the one hand, and such Holder the CB Investors, on the other, in connection with the statements or omissions which that resulted in such losses, claims, damages, liabilities, judgments judgments, actions or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand such indemnifying party and of such Holder on the other shall indemnified party will be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been taken by, or relates to information supplied by the Company by, such indemnifying party or by such Holder indemnified party, and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionaction. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall will be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a2.08(c), any legal or other fees or expenses reasonably incurred by such party in connection with investigating any investigation or defending any action or claim. proceeding.
(e) The Company and each Holder of Restricted Securities covered by any Registration Statement parties agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c2.08(d) 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 the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c2.08(d), no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person guilty of “fraudulent misrepresentations 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. The indemnity Notwithstanding the provisions of Section 2.08(d) and contribution provisions contained in this Section 2.7 are 2.08(e), each CB Investor’s liability pursuant to Section 2.08(d) in addition respect of the offering to which such loss, claim, damages, liabilities, judgments, actions or expenses relate shall not exceed an amount equal to the proceeds to such CB Investor (after deduction of all Underwriters’ discounts and commissions) from such offering less the amount of any damages which such CB Investor has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Each CB Investor’s obligation to contribute pursuant to this Section 2.08 is several in proportion to the respective number of Registrable Securities held by such Investor hereunder and not joint.
(f) For purposes of this Section 2.08, each Indemnified Person shall have the same rights to contribution as such CB Investor, and each officer, Director and Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall have the same rights to contribution as the Company, subject in each case to the limitations set forth in the immediately preceding paragraph. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this Section 2.08, notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 2.08 or otherwise except to the extent that it has been prejudiced in any material respect by such failure. No party shall be liable for contribution with respect to any liability which action or claim settled without its written consent; provided, however, that such written consent was not unreasonably withheld.
(g) If indemnification is available under this Section 2.08, the indemnifying Person may otherwise have party will indemnify each indemnified party to the full extent provided in Sections 2.08(a) and (b) without regard to the relative fault of said indemnifying party or indemnified Persons referred to aboveparty or any other equitable consideration provided for in Section 2.08(d).
Appears in 1 contract
Samples: Registration Rights Agreement (Digital Landscape Group, Inc.)
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Article IV, and subject to applicable law, the Company agrees to will indemnify and hold harmless each underwriter, each Investor or Founder who offers or sells any such Registrable Shares in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), and directors, officers, employees and agents of any of them (a "Selling Stockholder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934 (the "Exchange Act") (a "Controlling Person"), 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 under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading, or sale of such securities, (iii) any violation by the Company of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Stockholder or Controlling Person expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Selling Stockholder expressly for use in such registration statement, such Selling Stockholder will indemnify and hold harmless each Personunderwriter, if anythe Company (including its directors, officers, employees and agents), each Founder, each other Investor (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees and agents of any of them) so registered, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar at common law or otherwise to the same extent provided in the immediately preceding sentence. In no event, however, shall the liability of a Selling Stockholder for indemnification under this Section 4.6(a) in its capacity as such Claims arise out of (and not in its capacity as an officer or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company director of the Securities Act or any state securities law, or any rule or regulation promulgated under Company) exceed the Securities Act or any state securities law, or any other law applicable to lesser of (i) that proportion of the Company relating to any such registration or qualification, except insofar as total of such losses, claims, damages, liabilities, judgments damages or expenses of any such liabilities indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing against equal to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy proportion of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to total securities sold under such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue registration statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities which is being sold by such Holder. In case any action shall be brought Selling Stockholder or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated proceeds received by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement Selling Stockholder from its sale of any Registrable Shares under such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingregistration statement.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 4.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 4.6, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand other Selling Stockholders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, the Registrable Shares or (ii) if such 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 Company Company, the other Selling Stockholders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Stockholders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Stockholders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Shares. The relative fault of the Company on Company, the one hand Selling Stockholders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Stockholders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesSelling Stockholders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c4.6(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no Holder (and none of its related indemnified Persons) however, shall a Selling Stockholder be required to contribute, in the aggregate, contribute any amount under this Section 4.6(b) in excess of the amount lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Registrable Shares sold under such registration statement which are being sold by which such Selling Stockholder or (ii) the dollar amount of proceeds received by such Holder upon the Selling Stockholder from its sale of the Restricted Securities exceeds the amount of any damages which Registrable Shares under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(c) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 4.6 shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in addition this Section 4.6 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties.
(d) Any person entitled to indemnification hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification, but the failure to do so shall not relieve the indemnifying party from any liability, except to the extent it is actually prejudiced by the failure or delay in giving such notice, and (ii) unless in such indemnified party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party will not be subject to any liability which the indemnifying Person may otherwise have to for any settlement made by the indemnified Persons referred party without its consent (but such consent will not be unreasonably withheld). An indemnifying party with respect to abovesuch claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim.
Appears in 1 contract
Indemnification; Contribution. (a) Indemnification by the Company. The Company agrees to indemnify and --------------------------------- hold harmless (i) each the Holder covered by any Registration Statementand the beneficial owners, (ii) each other Person who participates as an underwriter in officers and directors of the offering or sale of such securities, (iii) Holder and each Person, if any, who controls (the Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause follows:
(i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all lossesloss, claimsliability, damagesclaim, liabilitiesdamage and expense whatsoever, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")as incurred, to which such indemnified the Holder, or any beneficial owner, officer, director or controlling Person of the Holder may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims otherwise (A) that arise out of or are based upon, or are caused by upon any untrue statement or alleged untrue statement of a material fact contained in any the Shelf Registration Statement or Prospectus (or any amendment or supplement thereto), or any the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading or (B) that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Prospectus or any amendment or supplement thereto, or the omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (C) that arise out of or are based upon any violation by the Company of the Securities Act or any state securities lawAct, the Exchange Act, or any rule or regulation promulgated under thereunder in connection with its obligations hereunder;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the Securities Act or extent of the aggregate amount paid in settlement of any state securities lawlitigation, or investigation or proceeding by any other law applicable to the Company relating to any such registration governmental agency or qualificationbody, except insofar as such lossescommenced or threatened, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by claim whatsoever based upon any such untrue statement or omission or alleged untrue statement or any omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent alleged omission or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplementedviolation, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action is effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.; and
(biii) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly), 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, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 Company and such Holder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a5(c), against any legal or other and all expense whatsoever, as incurred (including reasonable fees or expenses and disbursements of counsel), reasonably incurred by such party in connection with investigating investigating, preparing or defending against any action litigation, or claim. The Company and each Holder of Restricted Securities covered investigation or proceeding by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c) were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) governmental agency or by any other method of allocation which does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)body, no Holder (and none of its related indemnified Persons) shall be required to contributecommenced or threatened, in the aggregateeach case whether or not a party, or any amount in excess of the amount by which the dollar amount of proceeds received by claim whatsoever based upon any such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentations omission or violation, to the extent that any such expense is not paid under subparagraph (within i) or (ii) above; provided, however, that the meaning of Section 11(f) of the Securities Act) shall be entitled indemnity provided pursuant to contribution from any Person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution provisions contained in this Section 2.7 are in addition 5(a) -------- ------- shall not apply with respect to any liability which the indemnifying Person may otherwise have loss, liability, claim, damage or expense that arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the indemnified Persons referred to aboveCompany by the Holder expressly for use in the Shelf Registration Statement or any amendment thereto, or the Shelf Prospectus or any amendment or supplement thereto.
Appears in 1 contract
Samples: Registration Rights Agreement (Concurrent Computer Corp/De)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless harmless
(i) each Holder covered by any Registration Statement, ,
(ii) each other Person who participates as an underwriter in the offering or sale of such securities, ,
(iii) each Personperson, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons persons referred to in this clause (iii) being hereinafter referred to as a ("controlling Personperson"), and ) and
(iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person person (any Person person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, lawful from and against any and all losses, claims, damages, liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise wise out of or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or 17 supplemented, if the Company shall have previously furnished copies thereof hereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a Black Out Notice or a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv2.4(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such HolderHxxxxx. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. thereof Such indemnified Person shall have the right night to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, counsel or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall shall-have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; Persons and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any 18 pending or threatened action, action claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of eacheach person, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a2.8(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person person shall have the rights and duties given to each Holder by Section 2.7(a2.8(a).
(c) If the indemnification provided for in this Section 2.7 2.8 is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly), 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, judgments or of expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, Securities or (ii) if such allocation provided by clause (i) above is not permitted by applicable law, in such 19 proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and such Holder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder Hxxxxx and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a2.8(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c2.8(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 does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c), 2.8(c) no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentations (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. The indemnity and contribution provisions contained in this Section 2.7 2.8 are in addition to any liability which the indemnifying Person person may otherwise have to the indemnified Persons persons referred to above.. 20
Appears in 1 contract
Samples: Registration Rights Agreement (Environmental Remediation Holding Corp)
Indemnification; Contribution. (a) The Company agrees shall, to the fullest extent permitted by law, indemnify and hold harmless (i) each Holder covered by of Registrable Securities, any Registration Statement, (ii) each other Person who participates as an underwriter in the offering is or sale of such securities, (iii) each Person, if any, who controls might be deemed to be a “controlling person” (within the meaning of Section 15 of the Securities Act or and Section 20 of the Exchange Act) (each such Person, a “Controlling Person”) of a Holder, their respective direct and indirect general and limited partners, directors, officers, managers, members, employees, agents, Affiliates and shareholders, and each other Person, if any, who acts on behalf of or controls any such Holder or underwriter Controlling Person (any each of the Persons referred to in this clause (iiiforegoing, a “Covered Person”) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, actions, damages, liabilities, judgments or liabilities and expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Covered Person may become be, or is threatened to become, subject or be involved under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such Claims losses, claims, actions, damages, liabilities or expenses arise out of or are based upon, or are caused by upon (i) any untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference in any Registration Statement Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or Prospectus (any successor rule thereto) or any amendment thereof or supplement thereto)thereto or any document incorporated by reference therein, 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 not misleading, (iii) any violation or a alleged violation by the Company or any of its subsidiaries of the Securities Act or any other similar federal or state securities law, laws or any rule or regulation promulgated thereunder applicable to the Company or its subsidiaries and relating to any action or inaction required of the Company or its subsidiaries in connection with any registration of securities, or (iv) any information provided by the Company or at the instruction of the Company to any Person participating in the offer at the point of sale containing any untrue statement or alleged untrue statement of any material fact or omitting or allegedly omitting any material fact required to be included in such information or necessary to make the statements therein not misleading, and the Company shall promptly reimburse each Covered Person for any legal or other expenses reasonably incurred by such Covered Person in connection with investigating, defending or settling any such loss, claim, action, damage or liability; provided, that the Company shall not be so liable in any such case to the extent that any loss, claim, action, damage, liability or expense arises out of or is based upon any such untrue statement or alleged untrue statement, or omission or alleged omission, made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any state securities law, successor rule thereto) or any amendment thereof or supplement thereto or any document incorporated by reference therein or other law applicable information in reliance upon, and in conformity with, written information prepared and furnished to the Company relating by such Covered Person expressly for use therein. This indemnity shall be in addition to any liability the Company may otherwise have.
(b) In connection with any registration in which a Holder of Registrable Securities is participating, each such registration Holder shall furnish to the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or qualificationProspectus and shall, except to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person of the Company against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities, judgments liabilities or expenses arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in the Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto, (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading or (iii) any information provided by such Holder or at the instruction of such Holder to any Person participating in the offer at the point of sale containing any untrue statement or alleged untrue statement of any material fact or omitting or allegedly omitting any material fact required to be included in such indemnified Person; information or necessary to make the statements therein not misleading, but, in the case of each of clauses (xi), (ii) are caused by any and (iii), only to the extent that such untrue statement or alleged untrue statement, or omission or alleged untrue statement omission, is made in such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or omission that is based upon any successor rule thereto), any amendment thereof or supplement thereto or other information relating to such indemnified Person in reliance upon, and in conformity with, written information prepared and furnished in writing to the Company by or on behalf of any of such indemnified Person Holder expressly for use therein, and such Holder shall promptly reimburse the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person of the Company for any legal or other expenses reasonably incurred by them in connection with investigating, defending or settling any such loss, claim, action, damage, liability or expense; (yprovided, that the obligation to indemnify pursuant to this Section 12(b) with respect shall be individual and several, not joint and several, for each participating Holder and shall not exceed an amount equal to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to net proceeds (after deducting Selling Expenses) actually received by such Holder in accordance with this Agreement and said Prospectus, as amended the sale of Registrable Securities to which such Registration Statement or supplemented, would have corrected Prospectus relates. This indemnity shall be in addition to any liability which such untrue statement or omission; or Holder may otherwise have.
(zc) as a result of Any Person entitled to indemnification hereunder shall give prompt written notice to the use by an indemnified Person indemnifying party of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons claim with respect to which indemnity may be sought against the Companyit seeks indemnification; provided, such indemnified Person shall promptly that any failure or delay to so notify the Company indemnifying party shall not relieve the indemnifying party of its obligations hereunder, except to the extent that the indemnifying party is actually and materially prejudiced by reason of such failure or delay. In case a claim or an action that is subject or potentially subject to indemnification hereunder is brought against an indemnified party, the Company indemnifying party shall assume the defense thereof. Such indemnified Person be entitled to participate in and shall have the right right, exercisable by giving written notice to employ separate counsel in the indemnified party as promptly as practicable after receipt of written notice from such indemnified party of such claim or action, to assume, at the indemnifying party’s expense, the defense of any such action and claim or action, with counsel reasonably acceptable to the indemnified party; provided, that any indemnified party shall continue to be entitled to participate in the defense thereofof such claim or action, with counsel of its own choice, but the fees indemnifying party shall not be obligated to reimburse the indemnified party for any fees, costs and expenses of such counsel shall be at the expense of subsequently incurred by the indemnified Person party in connection with such defense unless (iA) the employment of such counsel shall have been specifically authorized indemnifying party has agreed in writing by the Companyto pay such fees, costs and expenses, (iiB) the Company shall have indemnifying party has failed to assume the defense and of such claim or action within a reasonable time after receipt of notice of such claim or action, (C) having assumed the defense of such claim or action, the indemnifying party fails to employ counselcounsel reasonably acceptable to the indemnified party or to pursue the defense of such claim or action in a reasonably vigorous manner, (D) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest or (iiiE) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel party has reasonably concluded that there may be one or more legal or equitable defenses available to it and/or other any other indemnified party which are different from or additional to those available to the Company (indemnifying party. Subject to the proviso in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person)foregoing sentence, it being understood, however, that the Company shall notno indemnifying party shall, in connection with such any one claim or action or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations circumstances or circumstancesallegations, be liable for the reasonable fees fees, costs and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all indemnified parties. The indemnifying party shall not have the right to settle a claim or action for which any indemnified party is entitled to indemnification hereunder without the consent of the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonablyparty, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company indemnifying party shall not, without the prior written consent of each indemnified Person, settle or compromise or not consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes as an unconditional term thereof the giving by the claimant or otherwise seek plaintiff therein to terminate any pending or threatened actionsuch indemnified party, claimin form and substance reasonably satisfactory to such indemnified party, litigation or proceeding of a full and final release from all liability in respect of which indemnification such claim or contribution may be sought hereunder (whether or not any indemnified Person is a action. The indemnifying party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required liable hereunder for any amount paid or payable or incurred pursuant to assume or in connection with any judgment entered or settlement effected with the defense thereof)consent of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, and the Company conditioned or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(adelayed).
(cd) If the indemnification provided for in this Section 2.7 12 is held by a court of competent jurisdiction to be unavailable to to, or unenforceable by, an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any lossesloss, claimsclaim, damagesaction, liabilitiesdamage, judgments liability or expenses expense referred to thereinherein, then each the applicable indemnifying party (in the case of the Holders severally and not jointly)party, in lieu of indemnifying such indemnified partyparty hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such lossesloss, claims damagesclaim, liabilitiesaction, judgments damage, liability or expenses (i) expense in such proportion as is appropriate to reflect the relative benefits received by fault of the Company indemnifying party, on the one hand hand, and of the Holder indemnified party, on the other hand from sale of Restricted Securitieshand, or (ii) if such 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 Company and such Holder in connection with the statements statements, omissions or omissions violations which resulted in such lossesloss, claimsclaim, damagesaction, liabilitiesdamage, judgments liability or expenses, expense as well as any other relevant equitable considerations. The relative fault of the Company indemnifying party, on the one hand hand, and of such Holder the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated thereunder applicable to the Company or its subsidiaries and relating to any action or inaction required of the Company or its subsidiaries in connection with any registration of securities was perpetrated by such Holder the indemnifying party or the indemnified party, and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement statement, omission or omissionviolation. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement parties agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c) hereto were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of or allocation which that does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c12(d), . In no Holder (and none of its related indemnified Persons) event shall be required to contribute, in the aggregate, any amount in excess of the amount by which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 12(d) exceed an amount equal to the dollar amount of net proceeds (after deducting Selling Expenses) actually received by such Holder upon in the sale of the Restricted Registrable Securities exceeds the amount of any damages which that gives rise to such Holder has otherwise been required obligation to pay by reason of such untrue statement or omission or alleged omissioncontribute. No Person indemnified party guilty or liable of fraudulent misrepresentations (misrepresentation within the meaning of Section 11(f) of the Securities Act) Act shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. .
(e) The indemnity and contribution provisions contained in of this Section 2.7 are 12 shall remain in addition to full force and effect regardless of any liability which investigation made by or on behalf of any indemnified party or any officer, director or Controlling Person of such indemnified party and shall survive the indemnifying Person may otherwise have to the indemnified Persons referred to aboveTransfer of any Registrable Securities by any Holder.
Appears in 1 contract
Samples: Registration Rights Agreement (Key Energy Services Inc)
Indemnification; Contribution. (a) The Incident to any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company agrees to will indemnify and hold harmless each underwriter and each Holder who offers or sells any such Registrable Securities in connection with such registration statement (including such Holder’s partners (including partners of partners and stockholders of any such partners), and directors, officers, employees, representatives and agents of any of them (a “Selling Holder”), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”)) 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, as the same are incurred), to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading, or sale of such securities, (iii) any violation by the Company of the Securities Act, any state securities or “blue sky” laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder or Controlling Person expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder will indemnify and hold harmless each Personunderwriter, if anythe Company (including its directors, officers, employees, representatives and agents) and each other Holder (including such Holder’s partners (including partners of partners and stockholders of such partners) and directors, officers, employees, representatives and agents of any of them, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar as such Claims arise out of at common law or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable otherwise to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished same extent provided in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holderimmediately preceding sentence. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understoodno event, however, that shall the Company shall not, in connection with such action or similar or related actions or proceedings arising out liability of a Selling Holder for indemnification under this Section 5(a) exceed the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated net proceeds received by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement Selling Holder from its sale of any Registrable Securities under such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingregistration statement.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand Selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, the Selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations; provided, however, that in the event of a registration statement filed in response to a demand under Section 3(a) and in which the Company does not register any shares of capital stock, the proportion of contribution by the Company, the Selling Holders and the underwriters shall in all cases be governed by clause (ii) above. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesSelling Holders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c5(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Selling Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this Section 5(b) in excess of the amount by which the dollar amount of net proceeds received by such Selling Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(c) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 5 shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in this Section 5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or Controlling Person of the indemnified parties. No indemnifying party, in the defense of any such claim or litigation, shall enter into a consent of entry of any judgment or enter into a settlement without the consent of the indemnified party, which consent will not be unreasonably withheld.
(d) Notwithstanding the foregoing, to the extent the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with an underwritten public offering are in addition to any liability which conflict with the indemnifying Person may otherwise have to foregoing provisions, the indemnified Persons referred to aboveprovisions in the underwriting agreement shall control.
Appears in 1 contract
Samples: Registration Rights Agreement (Medidata Solutions, Inc.)
Indemnification; Contribution. (a) The Company agrees and the Guarantor jointly and severally agree to indemnify indemnify, defend and hold harmless each Initial Purchaser, each Holder, each person (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each a “Controlling Person”), if any, who controls (any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), Act and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter Initial Purchaser, the Holders or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Controlling Person"), to the fullest extent lawful, from and against any and all lossesloss, claimsdamage, damagesexpense, liabilitiesliability, judgments claim or expenses, joint or several (or any actions or proceedings, whether commenced or threatened, in respect thereofthereof (including the reasonable cost of investigation) (collectively, "Claims"), to which such indemnified Person party may incur or become subject to under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwise, as incurred, insofar as such Claims arise loss, damage, expense, liability, claim or action arises out of or are is based upon, or are caused by upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus (Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto)thereto or in any preliminary prospectus, or 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 violation by 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 such statements were made, 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 Issuer Free Writing Prospectus or in any amendment or supplement thereto, in the light of the circumstances under which such statements were made, not misleading, and the Company of shall reimburse, as incurred, the Securities Act indemnified parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any state securities lawsuch loss, damage, expense, liability, claim or any rule or regulation promulgated under the Securities Act or any state securities lawaction in respect thereof; provided, or any other law applicable to however, that the Company relating shall not be required to provide any indemnification pursuant to this Section 6(a) in any such registration or qualification, except case insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by loss, damage, expense, liability, claim or action arises out of or is based upon any such untrue statement or omission or alleged untrue statement or omission that is based upon of a material fact contained in, or omitted from, and in conformity with information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person the Initial Purchaser or a Holder to the Company expressly for use thereinin, any Shelf Registration Statement or any Prospectus or any Issuer Free Writing Prospectus; (y) provided further that, with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the preliminary Prospectusindemnity agreement contained in this Section 6(a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, result damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by such Holder under the Securities Act in connection with such purchase and any such loss, damage, expenses, liability, claim or action of such Holder results from the fact that such Holder sold Securities to a Person to whom there was not sent or givengiven to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus provided the Company had previously furnished sufficient copies of such final prospectus to such Holder in a timely manner as to reasonably permit such Holder to send or give a copy of such final prospectus to such person at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understoodprovided further, however, that the Company shall not, in connection with such action or similar or related actions or proceedings arising out of the same general allegations or circumstances, this indemnity agreement will be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all liability which the indemnified Persons, which firm shall be (x) designated by Company may otherwise have to such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingparty.
(b) Each Holder of Restricted Securities covered by any Registration Statement agreesHolder, severally and not jointly, agrees to indemnify indemnify, defend and hold harmless the Company and its the Guarantor, and their respective directors, officers officers, employees and any Person controlling (person who controls the Company and the Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such indemnified party may incur or become subject to under the Securities Act) , the CompanyExchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i“Holder Information”) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus or Issuer Free Writing Prospectus, and (ii) or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information required to be stated in any Shelf Registration Statement or Prospectus or Issuer Free Writing Prospectus or necessary to make such Holder Information not misleading; and, subject to the extent of limitation set forth in the gross proceedsimmediately preceding clause, if anyeach Holder shall reimburse, received by such Purchaser from as incurred, the sale Company, as applicable, for any legal or other disposition of his or its Restricted Securities covered expenses reasonably incurred by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers Company, the Guarantor or any such controlling Person person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company, the Guarantor or any of its controlling persons. 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, pursuant to the Shelf Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statementpursuant to either Section 6(a) or Section 6(b), such Holder indemnified party shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such indemnified party or otherwise. Such indemnified party shall have the rights right to employ its own counsel in any such case, but the fees and duties given expenses of such counsel shall be at the Company expense of such indemnified party unless the employment of such counsel shall have been authorized in Section 2.7(awriting by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within thirty (30) days of the receipt of notice thereof or such indemnified party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (except in which case such Indemnifying Party shall not have the right to direct that portion of the Holder may but defense of such Proceeding on behalf of the indemnified party), in any of 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 required liable for the 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 assume such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the defense thereof)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 Company or its directors or officers or such controlling Person 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 counsel as contemplated by the rights second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such indemnified party in accordance with such request prior to the date of such settlement and duties (iii) such indemnified party shall have given such Indemnifying Party at least thirty (30) days’ prior notice of its intention to each Holder settle. No Indemnifying Party shall, without the prior written consent of any indemnified party, effect any settlement 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 Section 2.7(a)such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such indemnified party.
(cd) If the indemnification provided for in this Section 2.7 6 is unavailable to an indemnified party under Section 2.7(a6(a) or (b) (other than by reason of exceptions provided in those Sections) Section 6(b), or insufficient to hold such indemnified party harmless, in respect of any losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expenses actions referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)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, expenses, liabilities, judgments claims or expenses actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and by the Holder Holders or the Initial Purchaser, on the other hand hand, from sale the offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, on the one hand, and such Holder of the Holders or the Initial Purchaser, on the other hand, in connection with the statements or omissions which resulted in such losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expensesactions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of such Holder the Holders or the Initial Purchaser, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder the Holders or the Initial Purchaser and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments expenses, liabilities, claims and expenses actions referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. Proceeding.
(e) The Company Company, the Holders and each Holder of Restricted Securities covered by any Registration Statement the Initial Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c) 6 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 does not take into account of the equitable considerations referred to in the immediately preceding paragraphSection 6(d) above. Notwithstanding the provisions of this Section 2.7(c)6, no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount in excess of the amount by which the dollar amount of proceeds received total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder upon were offered to the sale of the Restricted Securities public exceeds the amount of any damages which such Holder 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 misrepresentations 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. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 2.7 are 6 shall remain operative and in addition to full force and effect regardless of (i) any liability which termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or any Initial Purchaser or any person controlling any Holder or any Initial Purchaser, or the indemnifying Person may otherwise have to Company, or the indemnified Persons referred to aboveCompany’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Samples: Registration Rights Agreement (KKR Financial Holdings LLC)
Indemnification; Contribution. (a) The Company agrees Incident to any registration statement referred to in this Article IV, and subject to applicable law, New XxXxxx Epyx will indemnify and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of such partners), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person (a "Controlling Person") who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the "Indemnified Persons"), 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 under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages, expenses or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading, or sale of such securities, (iii) any violation by New XxXxxx Epyx of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that New XxXxxx Epyx will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to New XxXxxx Epyx by such Indemnified Person expressly for use in such registration statement (in such Person's capacity as a shareholder of New XxXxxx Epyx and not in its capacity as an officer or director of New XxXxxx Epyx and which such information relates to such Person's capacity as a shareholder). With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to New XxXxxx Epyx by any Selling Holder expressly for use in such registration statement (in such Person's capacity as a shareholder of New XxXxxx Epyx and not in its capacity as an officer or director of New XxXxxx Epyx and which such information relates to such Person's capacity as a shareholder), such Selling Holder will indemnify and hold harmless each Personunderwriter, if anyNew XxXxxx Epyx (including its directors, officers, employees and agents), each other Selling Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees and agents of any of them), and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar at common law or otherwise to the same extent provided in the immediately preceding sentence. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 4.4(a) in its capacity as such Claims arise out (and not in its capacity as an officer or director of or are based upon, or are caused by any untrue statement or alleged untrue statement New XxXxxx Epyx) exceed the lesser of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company i) that proportion of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as total of such losses, claims, damages, liabilities, judgments damages or expenses of any such liabilities indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing against equal to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy proportion of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to total securities sold under such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue registration statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities which is being sold by such Holder. In case any action shall be brought Selling Holder or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated proceeds received by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement Selling Holder from its sale of any Registrable Securities under such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingregistration statement.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 4.4(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 4.4, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by New XxXxxx Epyx, the Company on the one hand other Selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, the Registrable Securities or (ii) if such 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 New XxXxxx Epyx, the Company other Selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by New XxXxxx Epyx, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by New XxXxxx Epyx and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of New XxXxxx Epyx, the Company on Selling Holders and the one hand and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by New XxXxxx Epyx, the Company Selling Holders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of New XxXxxx Epyx, the lossesSelling Holders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c4.4(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Selling Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this Section 4.4(b) in excess of the amount lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Registrable Securities sold under such registration statement which are being sold by which such Selling Holder or (ii) the dollar amount of proceeds received by such Selling Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(c) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 are in addition 4.4 shall be deemed to any liability which the indemnifying Person may otherwise have include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified Persons referred to aboveparty in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in this Section 4.4 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties.
Appears in 1 contract
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Section 7, the Company agrees to will indemnify and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and shareholders of any such partners), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a "Controlling Person")), 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, as the same are incurred), to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading, or sale of such securities, (iii) any violation by the Company of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration: provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder or Controlling Person expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder will indemnify and hold harmless each Personunderwriter, if anythe Company (including its directors, officers, employees and agents), each other Holder (including its partners (including partners of partners and shareholders of such partners) and directors, officers, employees and agents of any of them, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar as at common law or otherwise to the same extent provided in the immediately preceding sentence. In no event, however, shall a Selling Holder be liable for indemnification under this Section 7.5(a) for an amount in excess of the lesser of (i) the proceeds (net of the applicable underwriting discount) received by such Claims arise out Selling Holder from its sale of or are based uponRegistrable Securities under such registration statement, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company ii) such Selling Holder's pro rata share of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as total of such losses, claims, damagesdamages or liabilities indemnified against, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to the number of Registrable Securities sold by such indemnified Person furnished in writing to the Company by or on behalf of any of Selling Holder under such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to registration statement as a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy percentage of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to total number of securities sold under such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingregistration statement.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 7.5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 7.5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand other Selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, the other Selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesSelling Holders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c7.5(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Selling Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this Section 7.5(b) in excess of the amount by which lesser of (i) the dollar amount proceeds (net of proceeds the applicable underwriting discount) received by such Selling Holder from its sale of Registrable Securities under such registration statement, or (ii) such Selling Holder's pro rata share of the total of such losses, claims, damages or liabilities indemnified against, based upon the sale number of Registrable Securities sold by such Selling Holder under such registration statement as a percentage of the Restricted Securities exceeds the amount total number of any damages which securities sold under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(c) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 7.5 shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in this Section 7.5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties.
(d) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with an underwritten public offering are in addition to any liability which conflict with the indemnifying Person may otherwise have to foregoing provisions, the indemnified Persons referred to aboveprovisions of such underwriting agreement shall control.
Appears in 1 contract
Samples: Stock Purchase and Shareholders Agreement (Bsquare Corp /Wa)
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Article IV, the Company agrees to will indemnify and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners, (partners of partners and stockholders of any such partners), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a "Controlling Person"), 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, as the same are incurred), to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading, or sale of such securities, (iii) any violation by the Company of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder or Controlling Person expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder will indemnify and hold harmless each Personother underwriter, if anythe Company (including its directors, officers, employees, shareholders and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees and agents of any of them, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar as such Claims arise out of at common law or are based uponotherwise to the same extent provided in the immediately preceding sentence. However, or are caused by any untrue statement or alleged untrue statement the liability of a material fact contained in any Registration Statement or Prospectus Selling Holder for indemnification under this Section 4.5(a) shall not exceed the lesser of (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company i) that proportion of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as total of such losses, claims, damages, liabilities, judgments damages or expenses of any such liabilities indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing against equal to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy proportion of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to total securities sold under such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue registration statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities which is being sold by such Holder. In case any action shall be brought Selling Holder or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated proceeds received by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement Selling Holder from its sale of any Registrable Securities under such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingregistration statement.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 4.5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 4.5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand other Selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, the other Selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount and fees received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesSelling Holders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c4.5(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)However, no a Selling Holder (and none of its related indemnified Persons) shall not be required to contribute, in the aggregate, contribute any amount under this Section 4.5(b) in excess of the amount lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Registrable Securities sold under such registration statement which are being sold by which such Selling Holder or (ii) the dollar amount of proceeds received by such Selling Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(c) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 are in addition 4.5 shall be deemed to any liability which the indemnifying Person may otherwise have include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified Persons referred to aboveparty in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in this Section 4.5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties.
Appears in 1 contract
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Article III, and subject to applicable law, the Company agrees to will indemnify and hold harmless each underwriter, each Holder of Registrable Securities who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners and containing in like fashion until individuals are reached), and directors, officers, employees and agents of any of them, a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934 (the "Exchange Act") (a "Controlling Person"), 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 under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading, or sale of such securities, (iii) any violation by the Company of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by or on behalf of such underwriter, Selling Holder or Controlling Person expressly for use in such registration statement. Solely with respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by or on behalf of such Selling Holder expressly for use in such registration statement, such Selling Holder will indemnify and hold harmless each Personunderwriter, if anythe Company (including its directors, officers, employees and agents), each other Holder of Registrable Securities (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees and agents of any of them) so registered, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise out of or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.and
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 3.5(a) above for any reason is held (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right to appeal) to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 3.5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand other Selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, the other Selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement the Holders agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c3.5(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding In no event,
(c) The amount paid by an indemnifying party or payable to an indemnified party as a result of the provisions of losses, claims, damages and liabilities referred to in this Section 2.7(c3.5 shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. The indemnification and contribution provided for in this Section 3.5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties.
(d) Each party entitled to indemnification under this Section 3.5 (the "Indemnified Party") shall give notice to the 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, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided, that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not be unreasonably withheld); and, no Holder (and none provided, further, that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its related indemnified Persons) obligations under this Section 3.5, except to the extent the Indemnifying Party is prejudiced in its ability to defend such action, and shall not relieve the Indemnifying Party of any liability that it may have otherwise than under this Section 3.5. The Indemnified Party may participate in such defense at such party's expense; provided, however, that the Indemnifying Party shall pay such expense if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be required inappropriate due to contributeactual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceeding. No Indemnifying Party, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount defense of any damages such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the plaintiff or claimant to such Holder has otherwise been required Indemnified Party of a release from all liability in respect to pay by reason such claim or litigation, and no Indemnified Party shall consent to entry of any judgment or settle any such untrue statement claim or omission or alleged omission. No Person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution provisions contained in this Section 2.7 are in addition to any liability which the indemnifying Person may otherwise have to the indemnified Persons referred to above.litigation for which
Appears in 1 contract
Samples: Stockholders' Agreement (Affiliated Managers Group Inc)
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Section 7, the Company agrees to will indemnify and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of 29 35 them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934 (the "Exchange Act") (a "Controlling Person")), 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, as the same are incurred), to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading, or sale of such securities, (iii) each Personany violation by the Company of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder or Controlling Person expressly for use in such registration statement; and PROVIDED, FURTHER, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, expense or liability that arises out of or is based upon an untrue statement or allegedly untrue statement or omission or alleged omission in the prospectus, if anysuch untrue statement or allegedly untrue statement, omission or alleged omission is corrected so as to comply with all applicable securities laws in an amendment or supplement to the prospectus and if, having previously been furnished by or on behalf of the Company with copies of the prospectus as so amended or supplemented, such holder thereafter fails to deliver such prospectus as so amended or supplemented prior to or concurrently with the sale of a Registrable Security to the person asserting such loss, claim, damage, expense or liability who purchased such Registrable Security which is the subject thereof from such holder. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder will indemnify and hold harmless each underwriter, the Company (including its directors, officers, employees and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees and agents of any of them, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar as such Claims arise out of at common law or are based uponotherwise to the same extent provided in the immediately preceding sentence. In no event, or are caused by any untrue statement or alleged untrue statement however, shall the liability of a material fact contained in any Registration Statement or Prospectus Selling Holder for indemnification under this Section 7.5(a) exceed the lesser of (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company i) that proportion of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as total of such losses, claims, damages, liabilities, judgments damages or expenses of any such liabilities indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing against equal to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy proportion of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to total securities sold under such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue registration statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities which is being sold by such Holder. In case any action shall be brought Selling Holder or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated proceeds received by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement Selling Holder from its sale of any Registrable Securities under such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingregistration statement.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 7.5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 7.5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand other Selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, the other Selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesSelling Holders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c7.5(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Selling Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this Section 7.5(b) in excess of the amount lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Registrable Securities sold under such registration statement which are being sold by which such Selling Holder or (ii) the dollar amount of proceeds received by such Selling Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(c) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 are in addition 7.5 shall be deemed to any liability which the indemnifying Person may otherwise have include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified Persons referred to aboveparty in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in this Section 7.5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties.
Appears in 1 contract
Samples: Stock Purchase and Shareholders Agreement (Conley Canitano & Associates Inc)
Indemnification; Contribution. (a) The Incident to any registration statement filed hereunder, the Company agrees to will indemnify and hold harmless (i) Holder, including its partners, directors, officers, employees and agents, and each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, person who controls any of them (a "Controlling Person") within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934,a s amended (the "Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, 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 actions proceeding or proceedingsany claim asserted, whether commenced or threatened, in respect thereof) (collectively, "Claims"as the same are incurred), to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such Claims losses, claims, damages or liabilities arise out of or are based upon, or are caused by on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any Registration Statement related preliminary or Prospectus (definitive prospectus, or any amendment or supplement theretoto such registration statement or prospectus), or (ii) any omission or alleged omission to state therein in such document a material fact required to be stated therein in it or necessary to make the statements therein in it not misleading, or a (iii) any violation by the Company of the Securities Act or Act, any state securities law, or "blue sky" laws or any rule or regulation promulgated under thereunder in connection with such registration; provided, however, that the Securities Act Company will not be liable to the extent that such loss, claim, damage, expense or any state securities law, liability arises from and is based on an untrue statement or any other law applicable omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company relating to any by such Holder or Controlling Person expressly for use in such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any statement. With respect to such untrue statement or omission or alleged untrue statement or omission that is based upon in the information relating to such indemnified Person furnished in writing to the Company by Holder or on behalf of any of such indemnified a Controlling Person expressly for use therein; (y) with respect to the preliminary Prospectusin such registration statement, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to will indemnify and hold harmless any indemnified Person from and against any losseach underwriter, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and (including its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives employees and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereofagents), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly), 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, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 Company and such Holder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 2.7(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 does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c), no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution provisions contained in this Section 2.7 are in addition to any liability which the indemnifying Person may otherwise have to the indemnified Persons referred to above.each
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Personperson, if any, who controls (within the meaning themeaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons persons referred to in this clause (iii) being hereinafter referred to as a "“controlling Person"), person”) and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person person (any Person person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "“indemnified Person"”), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "“Claims"”), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise out of or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a Black-Out Notice or a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv2.5(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereofthereof with counsel reasonably satisfactory to the indemnified Persons, it being understood and agreed that the Company’s regular outside counsel is acceptable for such purpose. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, counsel or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are materially different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person)Company, it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; Persons and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's ’s prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, which shall not be unreasonably withheld, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Registrable Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of eacheach person, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) (x) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, (y) with respect to the preliminary Prospectus, any matters which result from the fact that such Holder sold Securities to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) such matters which result from the use by an indemnified Person of any Prospectus when, upon receipt of a Black-Out Notice or a notice from the Company of the existence of any fact of the kind described in Section 2.5(b)(iv), the indemnified Person or the related Holder was not permitted to do so, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Registrable Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person person in respect of which indemnity may be sought against a Holder of Restricted Registrable Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a2.8(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person person shall have the rights and duties given to each Holder by Section 2.7(a2.9(a). Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any the Company or any other indemnified Person and shall survive the transfer of securities by any applicable Holder.
(c) If the indemnification provided for in this Section 2.7 2.9 is unavailable to an indemnified party under Section 2.7(a2.9(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly), 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, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, Registrable Securities or (ii) if such 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 Company and such Holder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a2.9(a) and Section 2.9(b), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Registrable Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c2.9(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 does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c), 2.9(c) no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Registrable Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentations (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. The indemnity indemnity, and contribution provisions contained in this Section 2.7 2.9 are in addition to any liability which the indemnifying Person person may otherwise have to the indemnified Persons persons referred to above.
Appears in 1 contract
Indemnification; Contribution. (a) The Incident to any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company agrees to will indemnify and hold harmless the Investor if it offers or sells any such Registrable Securities in connection with such registration statement (including Investor's members (including partners, members or stockholders of such members), any directors, officers, employees, representatives and agents of any of them, and any underwriter (as defined in the Securities Act) for the Investor (each, a "Selling Investor" and collectively, the "Selling Investors"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a "Controlling Person")), from and against any and all losses, claims, damages, expenses and liabilities, joint or several (including any investigation, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, as the same are incurred), to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of any material fact contained in such registration statement or prospectus (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus) or (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document any material fact required to be stated in it or necessary to make the offering statements in it not misleading or sale of such securities, (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law in connection with the offering covered by such registration statement; provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by the Selling Investor or Controlling Person expressly for use in such registration statement.
(b) To the extent permitted by applicable law, with respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Selling Investor expressly for use in such registration statement, such Selling Investor will indemnify and hold harmless the Company (including its directors, and officers), each Personother Selling Investor (including its partners or members (including partners, if anymembers or stockholders of such entities) and directors, officers, employees, representatives and agents of any of them, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar as such Claims arise out of at common law or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable otherwise to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate same extent provided in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understoodimmediately preceding sentence; provided, however, that the Company shall not, indemnity agreement of such Selling Investor contained in connection with such action or similar or related actions or proceedings 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 (in addition to any local counselthis Section 7(b) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any apply to amounts paid in settlement of any such loss, claim, damage, liability or action or proceeding if such settlement is effected without the Company's prior written consentconsent of such Selling Investor, which consent shall not be withheld unreasonablyunreasonably withheld; provided further, and that in no event shall any indemnity by a Selling Investor under this Section 7(b) exceed the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity net proceeds from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, offering received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a)Selling Investor.
(c) If for any reason the indemnification provided for in this Section 2.7 is unavailable foregoing indemnities are unavailable, or are insufficient to hold harmless an indemnified party under Section 2.7(a) or (b) (party, other than by reason of the exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly), in lieu of indemnifying such indemnified party, under this Section 7 shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, expenses, liabilities, judgments actions or expenses (i) proceedings in such proportion as is appropriate to reflect the relative benefits received by to and faults of the Company indemnifying party on the one hand and the Holder indemnified party on the other hand from sale of Restricted Securities, or (ii) if such 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 Company and such Holder in connection with the offering of Registrable Securities (taking into account the portion of the proceeds realized by each such party) and the statements or omissions or alleged statements or omissions which resulted in such lossesloss, claimsdamage, damagesliability, liabilitiesaction, judgments proceeding or expensesexpense, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Investors and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Investors and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Investors and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Investors or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. ; provided, that in no event shall any contribution by a Selling Investor hereunder exceed the net proceeds from the offering received by such Selling Investor.
(d) The amount paid by an indemnifying party or payable to a an indemnified party as a result of the losses, claims, damages, damages and liabilities judgments and expenses referred to above in this Section 7 shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a)above, any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim, payable as the same are incurred. The Company indemnification and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to provided for in this Section 2.7(c) were determined by pro rata allocation (even if 7 will remain in full force and effect notwithstanding the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions termination of this Section 2.7(c)Agreement and regardless of any investigation made by or on behalf of the indemnified parties or any officer, no Holder (and none director, employee, agent or controlling person of its related the indemnified Persons) shall be required to contributeparties. No indemnifying party, in the aggregatedefense of any such claim or litigation, shall enter into a consent of entry of any amount in excess judgment or enter into a settlement without the consent of the amount by indemnified party, which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall consent will not be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution provisions contained in this Section 2.7 are in addition to any liability which the indemnifying Person may otherwise have to the indemnified Persons referred to aboveunreasonably withheld.
Appears in 1 contract
Samples: Merger Agreement (Hickok Inc)
Indemnification; Contribution. (a) The In the event any Registrable Shares are included in a registration statement contemplated by this Agreement, the Company shall, and it hereby agrees to to, indemnify and hold harmless (i) harmless, or cause to be indemnified and held harmless, each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), Investor and (iv) the its respective officers, directors, managers, partners, employees, representatives agents, representatives, trustees and agents controlling Persons, if any, in any offering or sale of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i)the Registrable Shares, (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments damages or expenses, joint or several (or actions or proceedings, whether commenced or threatened, liabilities in respect thereofthereof and expenses (including reasonable fees and expenses of counsel) or Actions in respect thereof (collectively, "“Claims"”), to which each such indemnified Person party may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwisesubject, insofar as such Claims (including any amounts paid in settlement effected with the consent of the Company as provided herein) arise out of or are based upon, or are caused by any upon an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement registration statement, or Prospectus (any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and the Company shall, and it hereby agrees to, reimburse, upon request, each such Investor for any legal or other out-of-pocket fees and expenses reasonably incurred and documented by them in connection with investigating or defending any such Claims; provided, that the Company shall not be liable to any Investor (or its officers, directors, managers, partners, employees, agents, representatives, trustees and controlling Persons, if any) in any such case to the extent that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, in reliance upon and in conformity with the Required Investor Information furnished to the Company in writing by such Investor or on behalf of such Investor by any Representative of such Investor, expressly for use therein, that is the subject of the untrue statement or omission.
(b) In the event any Registrable Shares are included in a registration statement contemplated by this Agreement, each Investor who includes Registrable Shares in such registration statement shall, and hereby agrees, on a several basis (and not jointly or jointly and severally) to, indemnify and hold harmless the Company and its officers, directors, managers, employees, agents, representatives and controlling Persons, if any, in any offering or sale of its Registrable Shares against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement as provided herein), or Actions in respect thereof, arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and each such Investor shall, and it hereby agrees to, on a several basis (and not jointly or a violation jointly and severally), reimburse the Company for any legal or other out-of-pocket fees and expenses reasonably incurred and documented by the Company of the Securities Act in connection with investigating or defending any state securities lawsuch Claims, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable in each case only to the Company relating to any extent that such registration untrue statement or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such alleged untrue statement or omission or alleged untrue statement or omission that is based was made in reliance upon information relating to such indemnified Person and in conformity with the Required Investor Information furnished in writing to the Company in writing by such Investor or on behalf of any of such indemnified Person its Representative expressly for use therein; (y) with respect to therein that is the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy subject of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understoodprovided, however, that the Company liability of each such Investor hereunder shall not, in connection with such action or similar or related actions or proceedings arising out be limited to an amount equal to the dollar amount of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, net proceeds actually received by such Purchaser Investor from the sale or other disposition of his or its Restricted Securities covered Registrable Shares sold by such Registration Statement. In case any action Investor pursuant to such registration statement or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a)prospectus.
(c) If The Investors and the Company agree that if, for any reason, the indemnification provided for in this provisions contemplated by Section 2.7 is 2.8(a) or Section 2.8(b) are unavailable to or are insufficient to hold harmless an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments or expenses Claims referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly), 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, judgments or expenses (i) Claims in such proportion as is appropriate to reflect the relative benefits received by fault of the Company indemnifying party, on the one hand hand, and the Holder indemnified party, on the other hand from sale hand, with respect to the applicable offering of Restricted Securities, or (ii) if such 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 Company and such Holder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expenses, as well as any other relevant equitable considerationssecurities. The relative fault of the Company on the one hand such indemnifying party and of such Holder on the other indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company such indemnifying party or by such Holder indemnified party, and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The If, however, the allocation in the first sentence of this Section 2.8(c) is not permitted by applicable Law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to a party as a result reflect not only such relative faults, but also the relative benefits of the lossesindemnifying party and the indemnified party, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), as well as any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claimrelevant equitable considerations. The Company and each Holder of Restricted Securities covered by any Registration Statement parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 2.7(c2.8(c) were to be 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 does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions sentences of this Section 2.7(c2.8(c), no Holder (and none . The amount paid or payable by an indemnified party as a result of its related indemnified Persons) the Claims referred to above shall be required deemed to contribute, include (subject to the limitations set forth in the aggregate, Section 2.9) any amount in excess of the amount by which the dollar amount of proceeds received legal or other out-of-pocket fees or expenses reasonably incurred by such Holder upon the sale of the Restricted Securities exceeds the amount of indemnified party in connection with investigating or defending any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionAction. No Person guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution provisions contained Notwithstanding the foregoing, no Investor shall be liable to contribute any amount in this Section 2.7 are in addition to any liability which excess of the indemnifying Person may otherwise have dollar amount equal to the indemnified Persons referred sum of (i) the net proceeds received by such Investor from the sale of Registrable Shares sold by such Investor pursuant to abovesuch registration statement or prospectus, minus (ii) any amounts paid or payable by such Investor pursuant to Section 2.8(b) (except in the case of fraud or willful misconduct by such Investor).
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees will indemnify, to indemnify the fullest extent permitted by Law, each Holder, each of its officers, directors, employees, partners (and hold harmless (i) the partners thereof, collectively, "Partners"), agents, affiliates and advisors and each person controlling such Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) each underwriter, if any, and each person who controls any underwriter within the respective officers, directors, partners, employees, representatives and agents meaning of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act Act, against all expenses, claims, losses, damages or Section 20 liabilities (or actions in respect thereof), including any of the Exchange Act foregoing incurred in settlement of any Litigation, commenced or otherwisethreatened, insofar as such Claims arise arising out of or are based upon, or are caused by on (i) any untrue statement (or alleged untrue statement statement) of a material fact contained in any Registration Statement registration statement, prospectus (including any summary prospectus or Prospectus (preliminary prospectus), offering circular or other document, or any amendment or supplement thereto), or incident to any such registration, (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 therein, in light of the circumstances in which they were made, not misleading, misleading or a (iii) any violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law Law applicable to the Company or relating to action required of or inaction by the Company in connection with such registration, and the Company will reimburse each such Holder and each other person entitled to be indemnified under this Section 8(a) for any legal and any other expenses reasonably incurred in connection with investigating, preparing or defending any such registration claim, loss, damage, liability or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of action; provided that the Company will not be liable in any such indemnified Person; (x) are caused by case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission that is based omission, made in reliance upon and in conformity with written information relating to such indemnified Person furnished in writing to the Company by an instrument duly executed by such Holder, controlling person or on behalf of any of such indemnified Person expressly underwriter and stated to be specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such Holder are included in the securities as to which such registration is being effected, indemnify the Company, each of its directors and officers, each underwriter, if any, of the Company's securities covered by such a registration statement, each person who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act, and each other Holder, each of its officers, directors, employees, Partners, agents, affiliates and advisors and each person controlling such Holder within the meaning of Section 15 of the Securities Act, against all expenses, claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus (including any summary prospectus or preliminary prospectus), offering circular or other document, or any amendment or supplement thereto, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and will reimburse the Company and each other person entitled to be indemnified under this Section 8(b), for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage,
(c) Each party entitled to indemnification under this Section 8 (the "Indemnified Party") (i) shall give written notice to the 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 and (ii) shall permit the Indemnifying Party to assume the defense of any such claim or any Litigation resulting therefrom; provided that counsel for the Indemnifying Party who shall conduct the defense of such claim or Litigation shall be approved by the Indemnified Party (y) whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense; provided, further, that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 8 unless the failure to give such notice is materially prejudicial to an Indemnifying Party's ability to defend such action; and provided, further, that the Indemnifying Party shall not assume the defense for matters as to which the Indemnified Party reasonably believes there may be a conflict of interest or separate and different defenses. No 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 which 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 to such claim or Litigation or as to which the Indemnified Party has to admit to any fault or culpability. No Indemnified Party, in the defense of any such claim or Litigation, shall, except with the consent of each Indemnifying Party, consent to entry of any judgment or enter into any settlement unless such Indemnified Party does not intend to seek indemnification with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent claim or given, at or prior to the written confirmation of Litigation against such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with Indemnifying Party hereunder.
(d) The indemnification provided for under this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person the Indemnified Party and shall survive the transfer Transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingsecurities.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(ce) If the indemnification provided for in this Section 2.7 8 from the Indemnifying Party is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) Indemnified Party hereunder in respect of any losses, claims, damages, liabilities, judgments liabilities or expenses referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly), 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, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 Company and such Holder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expenses, as well as any other relevant equitable considerations. Indemnifying The relative fault of the Company on the one hand and of such Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c8(e) 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 does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c8(e), no a Holder (and none of its related indemnified Persons) shall not be required to contribute, in the aggregate, contribute any amount in excess of the amount by which the dollar amount of net proceeds received by such Holder upon in the sale of the Restricted Securities offering to which such registration statement relates exceeds the amount of any damages which that such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionpay. No Person person guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was person. No person shall be obligated to contribute hereunder any amounts in payment for any settlement of any action or claim effected without such person's consent, which consent shall not guilty of such fraudulent misrepresentation. The indemnity and contribution provisions contained in this Section 2.7 are in addition to any liability which the indemnifying Person may otherwise have to the indemnified Persons referred to abovebe unreasonably withheld or delayed.
Appears in 1 contract
Samples: Registration Rights Agreement (Inrange Technologies Corp)
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Section 6, and subject to applicable law, the Company agrees to will indemnify and hold harmless each underwriter, each Holder of Registrable Securities (including its respective partners, directors, officers, employees and agents) so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act of 1934 and the rules and regulations promulgated thereunder (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 under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses claims damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged true statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading, or sale of such securities, (iii) any violation by the Company of the Securities Act, any state securities or blue sky laws or any rule or regulation thereunder in connection with such registration, provided that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Holder or controlling person expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Holder expressly for use in such registration statement, such Holder will indemnify and hold harmless each Personunderwriter, if anythe Company (including its directors, officers, employees and agents), each other Holder of Registrable Securities (including its respective partners directors, officers, employees and agents) so registered, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar as such Claims arise out of at common law or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable otherwise to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished same extent provided in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holderimmediately preceding sentence. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understoodno event, however, that shall the Company shall not, in connection with such action or similar or related actions or proceedings arising out liability of a Holder for indemnification under this subparagraph 6.7
(a) exceed the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated proceeds received by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement Holder from its sale of any Registrable Securities under such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingregistration statement.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 subparagraph 6.7(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this paragraph 6.7, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand other selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, the Registrable Securities or (ii) if such the allocation provided by clause (i) above is not permitted by applicable law, 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 Company Company, the other selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, the selling Holders and the underwriters shall be deemed to be in the same respective proportions as the net proceeds from the offering (before deducting expenses) received by the Company and the selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the selling Holders or by such Holder the underwriters and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesHolders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(csubparagraph 6.7
(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this subparagraph 6.7(b) in excess of the amount by which the dollar amount of proceeds received by such Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations 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.
(c) The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in this paragraph 6.7 shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. The indemnity indemnification and contribution provisions contained provided for in this Section 2.7 are paragraph 6.7 will remain in addition to full force and effect regardless of any liability which the indemnifying Person may otherwise have to investigation made by or on behalf of the indemnified Persons referred to aboveparties or any officer, director, employee, agent or controlling person of the indemnified parties.
Appears in 1 contract
Samples: Stock Purchase Agreement (Geotel Communications Corp)
Indemnification; Contribution. (a) The Incident to any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company agrees will, to the extent permitted by law, indemnify and hold harmless (i) each Holder covered by who offers or sells any Registration Statementsuch Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), (ii) and directors, officers, stockholders, affiliates, employees, representatives and agents of any of them, and each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, reasonable expenses and liabilities, judgments or expenses, joint or several (including any reasonable investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or actions proceeding or proceedingsany claim asserted, whether commenced or threatened, in respect thereof) (collectively, "Claims"as the same are incurred), to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such Claims losses, claims, damages or liabilities arise out of or are based upon, or are caused by on (i) any untrue statement or alleged untrue statement [of a material fact fact] contained in such registration statement (including any Registration Statement related preliminary or Prospectus (definitive prospectus, or any amendment or supplement theretoto such registration statement or prospectus), or (ii) any omission or alleged omission to state therein in such document a material fact required to be stated therein in it or necessary to make the statements therein in it not misleading; provided, however, that the Company will not be liable to the extent that (1) such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by or on behalf of such Holder in accordance with Section 4(a) of this Agreement for use in such registration statement, or (2) in the case of a violation sale directly by such Holder (including a sale of Registrable Securities through any underwriter retained by such Holder to engage in a distribution solely on behalf of such Holder), such untrue statement or alleged untrue statement or omission or alleged omission was contained in a preliminary prospectus and corrected in a final or amended prospectus, and such Holder failed to deliver a copy of the Company final or amended prospectus at or prior to the confirmation of the sale of the Registrable Securities to the Person asserting any such loss, claim, damage or liability in any case where such delivery is required by the Securities Act or any state securities lawlaws, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law, or any other law applicable . With respect to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon in the information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with Section 4(a) of this Agreement and said Prospectus, as amended or supplemented, would have corrected for use in such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Companyregistration statement, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, will severally and not jointly, to jointly indemnify and hold harmless the Company and (including its directors, officers officers, employees, representatives and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees, representatives and agents of any Person controlling (of them, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company), from and against any and all losses, claims, damages, reasonable expenses and liabilities, joint or several (including any reasonable 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, as the respective officers, directors, partners, employees, representatives and agents of eachsame are incurred), to which they, or any of them, may become subject under the same extent as Securities Act, the foregoing Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, provided, however, that the indemnification obligations of the Holder contained in this subsection 5(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 Holder, which consent shall not be unreasonably withheld; and provided, further, that, in no event shall any indemnity under this subsection 5(a) exceed the net proceeds from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, offering received by such Purchaser from Holder, except in the sale case of fraud or other disposition of his or its Restricted Securities covered willful misconduct by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a)Holder.
(cb) If the indemnification provided for in this Section 2.7 5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on other Holders from the other hand from sale offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company and such Holder the other Holders in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Holders shall be deemed to be in the same respective proportions that the net proceeds from the offering received by the Company and the Holders, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on and the one hand and of such Holder on the other Holders shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by or on behalf of the Company or by such Holder the Holders and the parties parties’ relative intent, knowledge, knowledge and access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claiminformation. The Company and each Holder of Restricted Securities covered by any Registration Statement the Holders agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c5(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c), no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(c) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 5 shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in addition this Section 5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. No indemnifying party, in the defense of any such claim or litigation, shall enter into a consent of entry of any judgment or enter into a settlement without the consent of the indemnified party, which consent will not be unreasonably withheld. Any indemnified party that proposes to assert the right to be indemnified under this Section 5 will, promptly after receipt of notice of commencement or threat of any claim or action against such party in respect of which a claim is to be made against an indemnifying party under this Section 5 notify the indemnifying party in writing (such written notice, an “Indemnification Notice”) of the commencement or threat of such action, enclosing a copy of all papers served or notices received (if applicable), but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability that the indemnifying party may have to any liability which indemnified party under the foregoing provisions of this Section 5 unless, and only to the extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying Person party. The indemnified party will have the right to retain its own counsel in any such action if (i) the employment of counsel by the indemnified party has been authorized by the indemnifying party, (ii) the indemnified party’s counsel, shall have reasonably concluded that there is a reasonable likelihood of a conflict of interest between the indemnifying party and the indemnified party in the conduct of the defense of such action or (iii) the indemnifying party shall not in fact have employed counsel to assume the defense of such action within a reasonable period of time following its receipt of the Indemnification Notice, in each of which cases the fees and expenses of the indemnified party’s separate counsel shall be at the expense of the indemnifying party; provided, however, that the indemnified party shall agree to repay any expenses so advanced hereunder if it is ultimately determined by a court of competent jurisdiction that the indemnified party to whom such expenses are advanced is not entitled to be indemnified; and provided, further, that so long as the indemnified party has reasonably concluded that no conflict of interest exists, the indemnifying party may otherwise have assume the defense of any action hereunder with counsel reasonably satisfactory to the indemnified Persons referred to aboveparty.
(d) In the event of an underwritten offering of Registrable Securities under this Agreement, the Company shall enter into standard indemnification and underwriting agreements with the underwriter thereof.
Appears in 1 contract
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Article II, and subject to applicable law, the Company agrees will, subject to the terms of the Intercreditor and Subordination Agreement, indemnify and hold harmless each underwriter, each Investor who holds any Registrable Securities (including its respective directors or partners, officers, employees and agents) so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (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 under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading, or sale of such securities, (iii) any violation by the Company of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration, provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Investor or controlling person expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Investor expressly for use in such registration statement, such Investor will indemnify and hold harmless each Personunderwriter, if anythe Company (including its directors, officers, employees and agents), each other Investor holding Registrable Securities (including its respective directors or partners, officers, employees and agents) so registered, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar as such Claims arise out at common law or otherwise to the same extent provided in the immediately preceding sentence. In no event, however, shall the liability of or are based upon, or are caused by any untrue statement or alleged untrue statement an Investor for indemnification under this Section 2.06(a) exceed the lesser of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company i) that proportion of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as total of such losses, claims, damages, liabilities, judgments damages or expenses of any such liabilities indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing against equal to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy proportion of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to total Registrable Securities sold under such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue registration statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities which is being sold by such Holder. In case any action shall be brought Investor or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated proceeds received by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement Investor from its sale of any Registrable Securities under such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingregistration statement.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 2.06(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 2.06, in lieu of indemnifying such indemnified partyparty thereunder, shall shall, subject to the terms of the Subordination Agreement, contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand other selling Investors and the Holder on underwriters from the other hand from sale offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, the other selling Investors and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, the selling Investors and the underwriters shall be deemed to be in the same respective proportions as the net proceeds from the offering (before deducting expenses) received by the Company and the selling Investors and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand selling Investors and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the selling Investors or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesInvestors, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c2.06(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no Holder (and none of its related indemnified Persons) however, shall an Investor be required to contribute, in the aggregate, contribute any amount under this Section 2.06(b) in excess of the amount lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Registrable Securities sold under such registration statement which is being sold by which such Investor or (ii) the dollar amount of proceeds received by such Holder upon the Investor from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f9(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. .
(c) The indemnity amount paid or payable by an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 are in addition 2.06 shall be deemed to any liability which the indemnifying Person may otherwise have include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified Persons referred to aboveparty in connection with investigating or defending any such action or claim. The indemnification and contribution provided for in this Section 2.06 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any director or partner, officer, employee, agent or controlling person of the indemnified parties.
Appears in 1 contract
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this SECTION 3, and subject to applicable law, the Company agrees to will indemnify and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange Act") (a "Controlling Person")), 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 under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading, or sale of such securities, (iii) any violation by the Company of the Securities Act, any state securities or blue sky laws or any rule or regulation thereunder in connection with such registration; PROVIDED, HOWEVER, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder or Controlling Person expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder will indemnify and hold harmless each Personunderwriter, if anythe Company (including its directors, officers, employees and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners)) and directors, officers, employees and agents of any of them) so registered, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar at common law or otherwise to the same extent provided in the immediately preceding sentence. In no event, however, shall the liability of a Selling Holder for indemnification under this SECTION 3.6(A) in its capacity as such Claims arise out of (and not in its capacity as an officer or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company director of the Securities Act or any state securities law, or any rule or regulation promulgated under Company) exceed the Securities Act or any state securities law, or any other law applicable to lesser of (i) that proportion of the Company relating to any such registration or qualification, except insofar as total of such losses, claims, damages, liabilities, judgments damages or expenses of any such liabilities indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing against equal to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy proportion of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to total securities sold under such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue registration statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities which is being sold by such Holder. In case any action shall be brought Selling Holder or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated proceeds received by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement Selling Holder from its sale of any Registrable Securities under such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingregistration statement.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 SECTION 3.6(A) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this SECTION 3.6, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand other Selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, the other Selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the losses, claims, damages, liabilities judgments Selling Holders and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(cSECTION 3.6(B) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Selling Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this SECTION 3.6(B) in excess of the amount lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Registrable Securities sold under such registration statement which are being sold by which such Selling Holder or (ii) the dollar amount of proceeds received by such Selling Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation.
(c) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and liabilities referred to in this SECTION 3.6 shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnity indemnification and contribution provisions contained provided for in this Section 2.7 are SECTION 3.6 will remain in addition to full force and effect regardless of any liability which the indemnifying Person may otherwise have to investigation made by or on behalf of the indemnified Persons referred to aboveparties or any officer, director, employee, agent or controlling person of the indemnified parties.
Appears in 1 contract
Samples: Investment and Stockholders' Agreement (Pathnet Inc)
Indemnification; Contribution. (aA) The Incident to any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company agrees to will indemnify and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), and directors, officers, employees, representatives and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a "Controlling Person"), from and against any and all losses, claims, damages, expenses and liabilities, joint or several (including any investigation, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, as the same are incurred), to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus) or (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading or sale of such securities, (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law in connection with the offering covered by such registration statement; provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder or Controlling Person expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder will indemnify and hold harmless each Personunderwriter, if anythe Company (including its directors, officers, employees, representatives and agents), each other Selling Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees, representatives and agents of any of them, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar as such Claims arise out of at common law or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable otherwise to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate same extent provided in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understoodimmediately preceding sentence; provided, however, that the Company shall not, indemnity agreement of such Selling Holder contained in connection with such action or similar or related actions or proceedings 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 (in addition to any local counselthis Section 6(a) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any apply to amounts paid in settlement of any such loss, claim, damage, liability or action or proceeding if such settlement is effected without the Company's prior written consentconsent of such Selling Holder, which consent shall not be withheld unreasonablyunreasonably withheld; provided further, and that in no event shall any indemnity by a Selling Holder under this Section 6(a) exceed the Company agrees to indemnify and hold harmless any indemnified Person net proceeds from and against any loss, claim, damage, liability, judgment or expense the offering received by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingSelling Holder.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(cB) If the indemnification provided for in this Section 2.7 6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 6, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses (i) liabilities in such proportion as is appropriate to reflect (i) the relative benefits received by the Company on Company, the one hand Selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, or the Registrable Securities and (ii) if such 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 Company Company, the Selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. ; provided, that in no event shall any contribution by a Selling Holder hereunder exceed the net proceeds from the offering received by such Selling Holder.
(C) The amount paid by an indemnifying party or payable to a an indemnified party as a result of the losses, claims, damages, damages and liabilities judgments and expenses referred to above in this Section 6 shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a)above, any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim, payable as the same are incurred. The Company indemnification and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to provided for in this Section 2.7(c) were determined 6 will remain in full force and effect regardless of any investigation made by pro rata allocation (even if or on behalf of the Holders were treated as one entity for such purpose) indemnified parties or by any other method officer, director, employee, agent or controlling person of allocation which does not take into account the equitable considerations referred to in the immediately preceding paragraphindemnified parties. Notwithstanding the provisions of this Section 2.7(c), no Holder (and none of its related indemnified Persons) shall be required to contributeNo indemnifying party, in the aggregatedefense of any such claim or litigation, shall enter into a consent of entry of any amount in excess judgment or enter into a settlement without the consent of the amount by indemnified party, which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall consent will not be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution provisions contained in this Section 2.7 are in addition to any liability which the indemnifying Person may otherwise have to the indemnified Persons referred to aboveunreasonably withheld.
Appears in 1 contract
Indemnification; Contribution. (a) The Incident to any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company agrees to will indemnify and hold harmless (i) each Holder covered by who offers or sells any Registration Statementsuch Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), (ii) and directors, officers, employees, representatives and agents of any of them, and each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, reasonable expenses and liabilities, judgments or expenses, joint or several (including any reasonable investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or actions proceeding or proceedingsany claim asserted, whether commenced or threatened, in respect thereof) (collectively, "Claims"as the same are incurred), to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such Claims losses, claims, damages or liabilities arise out of or are based upon, or are caused by on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any Registration Statement related preliminary or Prospectus (definitive prospectus, or any amendment or supplement thereto), to such registration statement or prospectus) or (ii) any omission or alleged omission to state therein in such document a material fact required to be stated therein in it or necessary to make the statements therein in it not misleading; provided, however, that the Company will not be liable to the extent that (1) such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by or on behalf of such Holder in accordance with Section 4(b) of this Agreement for use in such registration statement, or (2) in the case of a violation sale directly by such Holder (including a sale of Registrable Securities through any underwriter retained by such Holder to engage in a distribution solely on behalf of such Holder), such untrue statement or alleged untrue statement or omission or alleged omission was contained in a preliminary prospectus and corrected in a final or amended prospectus, and such Holder failed to deliver a copy of the Company final or amended prospectus at or prior to the confirmation of the sale of the Registrable Securities to the Person asserting any such loss, claim, damage or liability in any case where such delivery is required by the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable laws. With respect to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon in the information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with Section 4(a) of this Agreement and said Prospectusfor use in such registration statement, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally several and not jointlyjoint basis, to will indemnify and hold harmless the Company and (including its directors, officers officers, employees, representatives and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees, representatives and agents of any Person controlling (of them, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company), from and against any and all losses, claims, damages, reasonable expenses and liabilities, joint or several (including any reasonable 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, as the respective officers, directors, partners, employees, representatives and agents of eachsame are incurred), to which they, or any of them, may become subject under the same extent as Securities Act, the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale Exchange Act or other disposition of his federal or its Restricted Securities covered by such Registration Statement. In case any action state statutory law or proceeding shall be brought against the Company regulation, at common law or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a)otherwise.
(cb) If the indemnification provided for in this Section 2.7 5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on other Holders from the other hand from sale offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company and such Holder the other Holders in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Holders shall be deemed to be in the same respective proportions that the net proceeds from the offering received by the Company and the Holders, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on and the one hand and of such Holder on the other Holders shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by or on behalf of the Company or by such Holder the Holders and the parties Parties’ relative intent, knowledge, knowledge and access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claiminformation. The Company and each Holder of Restricted Securities covered by any Registration Statement the Holders agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c5(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c), no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(c) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 5 shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in addition this Section 5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. No indemnifying party, in the defense of any such claim or litigation, shall enter into a consent of entry of any judgment or enter into a settlement without the consent of the indemnified party, which consent will not be unreasonably withheld. Any indemnified party that proposes to assert the right to be indemnified under this Section 5 will, promptly after receipt of notice of commencement or threat of any claim or action against such party in respect of which a claim is to be made against an indemnifying party under this Section 5 notify the indemnifying party in writing (such written notice, an “Indemnification Notice”) of the commencement or threat of such action, enclosing a copy of all papers served or notices received (if applicable), but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability that the indemnifying party may have to any liability which indemnified party under the foregoing provisions of this Section 5 unless, and only to the extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying Person party. The indemnified party will have the right to retain its own counsel in any such action if (i) the employment of counsel by the indemnified party has been authorized by the indemnifying party, (ii) the indemnified party’s counsel, with the concurrence of indemnifying party’s counsel, shall have reasonably concluded that there is a substantial likelihood of a conflict of interest between the indemnifying party and the indemnified party in the conduct of the defense of such action or (iii) the indemnifying party shall not in fact have employed counsel to assume the defense of such action within a reasonable period of time following its receipt of the Indemnification Notice, in each of which cases the fees and expenses of the indemnified party’s separate counsel shall be at the expense of the indemnifying party; provided, however, that the indemnified party shall agree to repay any expenses so advanced hereunder if it is ultimately determined by a court of competent jurisdiction that the indemnified party to whom such expenses are advanced is not entitled to be indemnified; and provided, further, that so long as the indemnified party has reasonably concluded that no conflict of interest exists, the indemnifying party may otherwise have assume the defense of any action hereunder with counsel reasonably satisfactory to the indemnified Persons referred to aboveparty.
(d) In the event of an underwritten offering of Registrable Securities under this Agreement, the Company and the Holders shall enter into standard indemnification and underwriting agreements with the underwriter thereof. To the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the provisions of this Section 5, the provisions in the underwriting agreement shall control.
(e) The obligation of the Company and Holders under this Section 5 shall survive the completion of any offering of Registrable Securities in a registration statement under Section 2, and otherwise.
Appears in 1 contract
Samples: Registration Rights Agreement (Emergent BioSolutions Inc.)
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Section 7, the Company agrees to will indemnify and hold harmless each underwriter to the extent requested thereby, each Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934 (the "Exchange Act") (a "Controlling Person"), 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, as the same are incurred), to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading, or sale of such securities, (iii) any violation by the Company of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder or Controlling Person expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder will indemnify and hold harmless each Personunderwriter, if anythe Company (including its directors, officers, employees and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees and agents of any of them, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar as such Claims arise out of at common law or are based uponotherwise to the same extent provided in the immediately preceding sentence. In no event, or are caused by any untrue statement or alleged untrue statement however, shall the liability of a material fact contained in any Registration Statement or Prospectus Selling Holder for indemnification under this Section 7.5(a) exceed the lesser of (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company i) that proportion of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as total of such losses, claims, damages, liabilities, judgments damages or expenses of any such liabilities indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing against equal to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy proportion of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to total securities sold under such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue registration statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities which is being sold by such Holder. In case any action shall be brought Selling Holder or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated proceeds received by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement Selling Holder from its sale of any Registrable Securities under such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingregistration statement.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 7.5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 7.5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand other Selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, the other Selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesSelling Holders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c7.5(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Selling Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this Section 7.5(b) in excess of the amount lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Registrable Securities sold under such registration statement which are being sold by which such Selling Holder or (ii) the dollar amount of proceeds received by such Selling Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(c) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 are in addition 7.5 shall be deemed to any liability which the indemnifying Person may otherwise have include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified Persons referred to aboveparty in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in this Section 7.5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties.
Appears in 1 contract
Samples: Stock Purchase and Shareholders Agreement (Natrol Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless the Initial Purchasers, each Holder, each person (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each a “Controlling Person”), if any, who controls (the Initial Purchasers or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), Act and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter the Initial Purchasers, the Holders or any controlling Controlling Person (any Person referred to in clause (ieach, an “Indemnified Party”), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all lossesloss, claimsdamage, damagesexpense, liabilitiesliability, judgments claim or expenses, joint or several (or any actions or proceedings, whether commenced or threatened, in respect thereofthereof (including the reasonable cost of investigation) (collectively, "Claims"), to which such indemnified Person Indemnified Party may incur or become subject to under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwise, insofar as such Claims arise loss, damage, expense, liability, claim or action arises out of or are is based upon, or are caused by upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus (Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto)thereto or in any preliminary prospectus, or 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 violation by 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 such statements were made, not misleading, and the Company of shall reimburse, as incurred, the Securities Act Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any state securities lawsuch loss, damage, expense, liability, claim or any rule or regulation promulgated under the Securities Act or any state securities lawaction in respect thereof; provided, or any other law applicable to however, that the Company relating shall not be required to provide any indemnification pursuant to this Section 6(a) in any such registration or qualification, except case insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by loss, damage, expense, liability, claim or action arises out of or is based upon any such untrue statement or omission or alleged untrue statement or omission that is based upon of a material fact contained in, or omitted from, and in conformity with information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person an Initial Purchaser or a Holder to the Company expressly for use thereinin, any Shelf Registration Statement or any Prospectus; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understoodprovided further, however, that the Company shall not, in connection with such action or similar or related actions or proceedings arising out of the same general allegations or circumstances, this indemnity agreement will be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified Persons, liability which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees may otherwise have to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingIndemnified Party.
(b) Each Holder of Restricted Securities covered by any Registration Statement agreesHolder, severally and not jointly, agrees to indemnify indemnify, defend and hold harmless the Company and Company, its directors, officers officers, employees and any Person controlling (person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (A) the Companyany untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i“Holder Information”) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, and or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information required to be stated in any Shelf Registration Statement or Prospectus or necessary to make such Holder Information not misleading, or (iiB) a sale, by such Holder pursuant to a Shelf Registration Statement in or with respect to which such Holder is named as a selling security holder, of Registrable Securities during a Suspension Period, provided that the Company shall have theretofore provided such Holder a Suspension Notice in accordance with Section 3(i), or (C) a public sale of Registrable Securities by such Holder without delivery, if required by the Securities Act, of the most recent applicable Prospectus provided to such Holder by the Company pursuant to Section 2(c)(i)(C), provided the Company shall have theretofore provided such Holder with copies of such Prospectus in a timely manner so as to permit such delivery; and, subject to the extent of limitation set forth in the gross proceedsimmediately preceding clause, if anyeach Holder shall reimburse, received by such Purchaser from as incurred, the sale Company for any legal or other disposition of his or its Restricted Securities covered expenses reasonably incurred by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. 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, pursuant to the Shelf Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statementpursuant to either Section 6(a) or Section 6(b), such Holder person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise, unless the Indemnifying Party shall be materially prejudiced as a result of the failure to deliver notice, and then only to the extent of such prejudice. Such Indemnified Party shall have the rights right to employ its own counsel in any such case, but the fees and duties given expenses of such counsel shall be at the Company expense of such Indemnified Party unless the employment of such counsel shall have been authorized in Section 2.7(awriting by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (except in which case such Indemnifying Party shall not have the right to direct that portion of the Holder defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of 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 required liable for the 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 assume such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the defense thereof)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 Company or its directors or officers or such controlling Person 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 counsel as contemplated by the rights second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request and duties as required by this Agreement prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least thirty (30) days’ prior notice of its intention to each Holder settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could reasonably be expected have been a party and indemnity could have been sought hereunder by Section 2.7(a)such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such Indemnified Party.
(cd) If the indemnification provided for in this Section 2.7 6 is unavailable to an indemnified party Indemnified Party under Section 2.7(a6(a) or (b) (other than by reason of exceptions provided in those Sections) Section 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expenses actions referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)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, judgments claims or expenses actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and by the Holder Holders or the Initial Purchasers, on the other hand hand, from sale the offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, on the one hand, and such Holder of the Holders or the Initial Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expensesactions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of such Holder the Holders or the Initial Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder the Holders or the Initial Purchasers and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments expenses, liabilities, claims and expenses actions referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. Proceeding.
(e) The Company Company, the Holders and each Holder of Restricted Securities covered by any Registration Statement the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c) 6 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 does not take into account of the equitable considerations referred to in the immediately preceding paragraphSection 6(d) above. Notwithstanding the provisions of this Section 2.7(c)6, no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount in excess of the amount by which the dollar amount of proceeds received total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder upon were offered to the sale of the Restricted Securities public exceeds the amount of any damages which such Holder 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 misrepresentations 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. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 2.7 are 6 shall remain operative and in addition to full force and effect regardless of (i) any liability which termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnifying Person may otherwise have to Initial Purchasers or any person controlling any Holder or the indemnified Persons referred to aboveInitial Purchasers, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees (i) to indemnify indemnify, defend and hold harmless (i) each Holder covered by any Registration StatementPlacement Agent, (ii) its directors, officers, employees and agents, and each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Personperson, if any, who controls (such Placement Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any , and the successors and assigns of all of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawfulforegoing persons, from and against any and all lossesloss, claimsdamage, damagesexpense, liabilities, judgments liability or expenses, joint or several claim (or actions or proceedings, whether commenced or threatened, in respect thereofthereof as contemplated below) (collectively, "Claims"), to which such indemnified Person Placement Agent or any such person may become subject incur under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act Act, the common law or otherwise, insofar as such Claims arise loss, damage, expense, liability or claim (or actions in respect thereof as contemplated below) arises out of or are is based upon(A) in whole or in part upon any inaccuracy in the representations and warranties of the Company contained herein, (B) in whole or are caused by in part upon any failure of the Company to perform its obligations hereunder or under law, (C) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430A, Rule 430B or Rule 430C under the Act, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, (D) upon any untrue statement or alleged untrue statement of a material fact contained in the Disclosure Package, any Issuer Free Writing Prospectus, the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (E) in whole or in part upon any act or failure to act or alleged act or failure to act by such Placement Agent in reliance upon (A), (B), (C) or (D), and in connection with or relating in any manner to the Shares or the offering contemplated hereby, and which is included as part of any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause (A), (B), (C) or (D) above, provided that the Company shall not be liable under this clause (E) to the extent that a court of competent jurisdiction shall have determined by a final judgment that such loss, claim, damage, liability or action resulted primarily from any such acts or failures to act undertaken or omitted to be taken by such Placement Agent through its bad faith, gross negligence or willful misconduct and (ii) to reimburse each Placement Agent, its officers, directors, employees, agents and each such controlling person for any and all expenses (including the fees and disbursements of counsel chosen by such Placement Agent) as such expenses are reasonably incurred by such Placement Agent, or its officers, directors, employees and agents or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by the Placement Agents expressly for use in the Registration Statement, any Issuer Free Writing Prospectus, or the Prospectus (or any amendment or supplement thereto). The indemnity agreement set forth in this Section 9(a) shall be in addition to any liabilities that the Company may otherwise have.
(b) Each of the Placement Agents agrees, severally and not jointly, to indemnify and hold harmless the Company, each of its directors, each of its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of the Act or the Exchange Act, against any loss, claim, damage, liability or expense, as incurred, to which the Company or any such director, officer or controlling person may become subject, insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based upon any untrue or alleged untrue statement of a material fact contained in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or any arises out of or is 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 not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable in each case to the Company relating extent, and only to any the extent, that such registration untrue statement or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such alleged untrue statement or omission or alleged untrue statement omission was made in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or omission that is based the Prospectus (or any amendment or supplement thereto), in reliance upon and in conformity with written information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person the Placement Agents expressly for use therein; (y) and to reimburse the Company or any such director, officer or controlling person for any legal and other expense reasonably incurred by the Company or any such director, officer or controlling person in connection with respect investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action. The Company hereby acknowledges that the only information that the Placement Agents have furnished to the preliminary ProspectusCompany expressly for use in the Registration Statement, result from the fact that such Holder sold Securities to a Person to whom there was not sent Disclosure Package, any Issuer Free Writing Prospectus or given, at the Prospectus (or prior to any amendment or supplement thereto) are the written confirmation of such sale, a copy statements set forth in the penultimate paragraph of the Prospectus, as amended or supplemented, if Prospectus Supplement under the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or caption “Plan of Distribution” concerning stabilization.
(zc) as a result of the use Promptly after receipt by an indemnified Person party under this Section 9 of notice of the commencement of any Prospectus whenaction, upon receipt of such indemnified party will, if a notice from claim in respect thereof is to be made against an indemnifying party under this Section 9, notify the Company indemnifying party in writing of the existence of any fact of commencement thereof; but the kind described in Section 2.3(b)(iv), failure to so notify the indemnified Person indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the related Holder was extent it did not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer otherwise learn of such securities action and such failure results in the forfeiture by such Holderthe indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any liability other than the indemnification obligation provided in paragraph (a) or (b) above. In case any such action shall be is brought or asserted against any of indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified Persons with respect to which indemnity may be sought against party promptly after receiving the Company, aforesaid notice from such indemnified Person shall promptly notify the Company and the Company shall party, to assume the defense thereof. Such thereof with counsel reasonably satisfactory to such indemnified Person shall have party; provided, however, if the right to employ separate counsel defendants in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person party and the Company indemnifying party and the indemnified Person party shall have been advised reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party in writing by its counsel conducting the defense of any such action or that there may be one or more legal defenses available to it which and/or other indemnified parties that are different from or additional to those available to the Company (in which case indemnifying party, the Company indemnified party or parties shall not have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party’s election so to assume the defense of such action and approval by the indemnified Person)party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 9 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence (it being understood, however, that the Company indemnifying party shall not, in connection with such action or similar or related actions or proceedings arising out of the same general allegations or circumstances, not be liable for the reasonable fees and expenses of more than one separate firm of attorneys counsel (in addition to any other than local counsel) at any time for all ), reasonably approved by the indemnifying party, representing the indemnified Persons, which firm parties who are parties to such action) or (ii) the indemnifying party shall be (x) designated by such indemnified Persons; and (y) reasonably not have employed counsel satisfactory to the Company. indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action, in each of which cases the fees and expenses of counsel shall be at the expense of the indemnifying party.
(d) The Company indemnifying party under this Section 9 shall not be liable for any settlement of any such action or proceeding effected without the Company's prior its written consent, which but if settled with such consent shall not or if there be withheld unreasonablya final judgment for the plaintiff, and the Company indemnifying party agrees to indemnify and hold harmless any the indemnified Person from and party against any loss, claim, damage, liability, judgment liability or expense by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by Section 9(c) hereof, the indemnifying party agrees that it shall be liable for any settlement of any action proceeding effected with the without its written consent if such settlement is entered into more than 30 days after receipt by such indemnifying party of the Companyaforesaid request and such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. The Company shall notNo indemnifying party shall, without the prior written consent of each the indemnified Personparty, settle or effect any settlement, compromise or consent to the entry of judgment on or otherwise seek to terminate in any pending or threatened action, claim, litigation suit or proceeding in respect of which indemnification any indemnified party is or contribution may be could have been a party and indemnity was or could have been sought hereunder (whether or not any by such indemnified Person is a party thereto)party, unless such settlement, compromise, compromise or consent or termination (i) includes an unconditional release of each such indemnified Person party from all liability arising out on claims that are the subject matter of such action, claim litigation suit or proceeding.
proceeding and (bii) Each Holder does not include a statement as to or an admission of Restricted Securities covered by any Registration Statement agreesfault, severally and not jointlyculpability or a failure to act, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a)indemnified party.
(ce) If the indemnification provided for in this Section 2.7 is unavailable to an indemnified party under Section 2.7(a9(a) or (b) (other than by ), as applicable, is for any reason of exceptions provided in those Sections) unavailable to or otherwise insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities, judgments liabilities or expenses referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly), in lieu of indemnifying such indemnified party, shall contribute to the aggregate amount paid or payable by such indemnified party party, as incurred, as a result of such any losses, claims claims, damages, liabilities, judgments liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and the Holder Placement Agents, on the other hand hand, from sale the placement of Restricted Securities, the Shares pursuant to this Agreement or (ii) if such 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 Company Company, on the one hand, and such Holder the Placement Agents, on the other hand, in connection with the statements or omissions contained in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) or inaccuracies in the representations and warranties herein which resulted in such losses, claims, damages, liabilities, judgments liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Placement Agents, on the other hand, in connection with the placement of the Shares pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the placement of the Shares pursuant to this Agreement (before deducting expenses) received by the Company, and the total compensation received by the Placement Agents bear to the aggregate proceeds from the placement of the Shares. The relative fault of the Company Company, on the one hand hand, and of such Holder the Placement Agents, on the other hand, shall be determined by reference to, among other things, whether the any such untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact or any such inaccurate or alleged inaccurate representation or warranty relates to information supplied by the Company Company, on the one hand, or by such Holder the Placement Agents, on the other hand, and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a9(c), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement the Placement Agents agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c9(e) were determined by pro rata allocation (even if the Holders Placement Agents 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 in the immediately preceding paragraph. this Section 9(e).
(f) Notwithstanding the provisions of this Section 2.7(c9(e), no Holder (and none of its related indemnified Persons) Placement Agent shall be required to contribute, in the aggregate, contribute any amount in excess of the amount by which the dollar amount of proceeds compensation received by such Holder upon Placement Agent in connection with the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay placement contemplated by reason of such untrue statement or omission or alleged omissionthis Agreement. No Person person guilty of fraudulent misrepresentations 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. The indemnity Placement Agents’ obligations to contribute pursuant to Section 9(e) are several, and not joint, in proportion to their respective percentage allocations of the compensation payable by the Company pursuant to Section 1 hereof. For purposes of Section 9(e), each director, officer, employee and agent of a Placement Agent and each person, if any, who controls a Placement Agent within the meaning of the Act or the Exchange Act shall have the same rights to contribution provisions contained in this Section 2.7 are in addition as such Placement Agent, and each director of the Company, each officer of the Company who signed the Registration Statement and each person, if any, who controls the Company within the meaning of the Act or the Exchange Act shall have the same rights to any liability which contribution as the indemnifying Person may otherwise have to the indemnified Persons referred to aboveCompany.
Appears in 1 contract
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Section 7, the Company agrees to will indemnify and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934 (the "Exchange Act") (a "Controlling Person")), 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, as the same are incurred), to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading, or sale of such securities, (iii) any violation by the Company of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration; PROVIDED, HOWEVER, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder or Controlling Person expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder will indemnify and hold harmless each Personunderwriter, if anythe Company (including its directors, officers, employees and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees and agents of any of them, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar as such Claims arise out of at common law or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable otherwise to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate same extent provided in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Companyimmediately preceding sentence. The Company shall not be liable obligated hereunder to indemnify any Holder for any amount paid in settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment liability or expense by reason of any action if such settlement of any action is effected with without the written consent of the CompanyCompany (which consent shall not be unreasonably withheld). The Company In no event, however, shall notthe liability of a Selling Holder for indemnification under this Section 7.5(a) exceed the lesser of (i) that proportion of the total of such losses, without the prior written consent of each claims, damages or liabilities indemnified Person, settle or compromise or consent against equal to the entry proportion of judgment on the total securities sold under such registration statement which is being sold by such Selling Holder or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect (ii) the proceeds received by such Selling Holder from its sale of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless Registrable Securities under such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingregistration statement.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 7.5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 7.5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand other Selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, the other Selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesSelling Holders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c7.5(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Selling Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this Section 7.5(b) in excess of the amount lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Registrable Securities sold under such registration statement which are being sold by which such Selling Holder or (ii) the dollar amount of proceeds received by such Selling Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(c) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 are in addition 7.5 shall be deemed to any liability which the indemnifying Person may otherwise have include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified Persons referred to aboveparty in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in this Section 7.5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties.
Appears in 1 contract
Samples: Stock Purchase and Stockholders Agreement (Invitrogen Corp)
Indemnification; Contribution. (a) The In connection with any registration of Registrable Securities pursuant to this Article II, the Company agrees to indemnify and hold harmless (i) harmless, to the fullest extent permitted by applicable Law, each Holder covered by any Registration Statement, (ii) Investor and its respective Affiliates and each other Person who participates as an underwriter in the offering or sale of controls such securities, (iii) each Person, if any, who controls (Investor within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective directors, officers, directorsemployees, partners, employeesaffiliates, members, managers, shareholders, assignees and representatives and agents of any such Holder or underwriter or any controlling Person each of the foregoing (any Person referred to in clause (i)collectively, (ii), (iiithe “Indemnified Persons”) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expensesjudgments, actions and expenses (including documented and reasonable attorneys’ fees) (“Losses”) joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise arising out of or are based upon, or are caused by upon (i) any untrue statement or alleged untrue statement of a material fact contained in any part of any Registration Statement Statement, any preliminary or Prospectus (final prospectus or other disclosure document used in connection with the Registrable Securities, any Issuer FWP or any amendment or supplement thereto)to any of the foregoing, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus, in the light of the circumstances under which they were made) not misleading, misleading or a (ii) any violation or alleged violation by the Company of the Securities Act or any state securities lawof its Subsidiaries of any federal, state, foreign or any common law rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company or any of its Subsidiaries and relating to action or inaction in connection with any such registration registration, Registration Statement, other disclosure document or qualificationIssuer FWP; provided, except insofar as such losseshowever, claims, damages, liabilities, judgments or expenses of that the Company will not be required to indemnify any such indemnified Person; (x) are caused by Indemnified Person for any Losses resulting from any such untrue statement or omission or alleged to the extent such untrue statement or omission that is based upon was made in reliance on and in conformity with information relating with respect to such indemnified any Indemnified Person furnished to the Company in writing by such Investor expressly for use in the Registration Statement or prospectus in which such untrue statement or omission is purported to have occurred.
(b) In connection with any Registration Statement, preliminary or final prospectus, or Issuer FWP, each Investor agrees to indemnify, severally and not jointly, the Company, its Directors, its officers who sign such Registration Statement and each Person, if any, who controls the Company (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as the foregoing indemnity from the Company to the Investor, but only with respect to information with respect to the Investor furnished to the Company in writing by the Investor expressly for use in such Registration Statement, preliminary or final prospectus, or Issuer FWP to the extent such information is included in the Registration Statement or prospectus in which such untrue statement or omission is purported to have occurred in reliance upon and in conformity with the information furnished to the Company by or on behalf of any of such indemnified Person the Investor expressly for use therein; (y) with provided, however, that in no event shall the Investor’s liability pursuant to this Section 2.08 in respect of the offering to which such Losses relate exceed an amount equal to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior proceeds to the written confirmation Investor (after deduction of all Underwriters’ discounts and commissions) from such offering less the amount of any damages which the Investor has otherwise been required to pay by reason of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or information.
(zc) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any claim, action shall be brought or asserted against proceeding (including any governmental investigation) is instituted involving any Person in respect of the indemnified Persons with respect to which indemnity may be sought against the Companypursuant to Section 2.08(a) or (b), such Person (hereinafter called the “indemnified Person shall party”) will (i) promptly notify the Company and Person against whom such indemnity may be sought (hereinafter called the Company “indemnifying party”) in writing; provided, however, that the failure to give such notice shall not relieve the indemnifying party of its obligations pursuant to this Agreement except to the extent such indemnifying party has been prejudiced in any material respect by such failure; (ii) permit the indemnifying party to assume the defense thereofof such claim, action or proceeding with counsel reasonably satisfactory to the indemnified party to represent the indemnified party; and (iii) pay the fees and disbursements of such counsel related to such claim, action or proceeding. Such In any such claim, action or proceeding, any indemnified Person shall party will have the right to employ separate counsel in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel shall will be at the expense of such indemnified party (without prejudice to such indemnified party’s indemnity and other rights under the Charter, Bylaws and applicable Law, if any) unless (A) the indemnifying party and the indemnified Person unless (i) party have mutually agreed to the employment retention of such counsel shall have been specifically authorized in writing by the Companycounsel, (ii) the Company shall have failed to assume the defense and employ counsel, or (iiiB) the named parties to any such claim, action or proceeding (including any implied impleaded parties) include both the indemnified Person and the Company indemnifying party and the indemnified Person shall have party and the indemnified party has been advised in writing by its counsel that there may representation of both parties by the same counsel would be one inappropriate due to actual or more legal defenses available to it which are different from or additional to those available to potential conflicting interests between them, (C) the Company (in which case the Company shall not have the right indemnifying party has failed to assume the defense of such action on behalf of claim and employ counsel reasonably satisfactory to the indemnified Person)party, it being understoodor (D) any such, howeverclaim, action or proceeding is a criminal or regulatory enforcement action. It is understood that the Company shall indemnifying party will not, in connection with such any claim, action or similar proceeding or related claims, actions or proceedings arising out of in the same general allegations or circumstancesjurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys for the indemnified parties (in addition to any local counsel) counsel at any time for all such indemnified parties) and that all such reasonable fees and expenses will be reimbursed reasonably promptly following a written request by an indemnified party stating under which clause of (A) through (C) above reimbursement is sought and delivery of documentation of such fees and expenses. In the case of the retention of any such separate firm for the indemnified Personsparties, which such firm shall will be (x) designated in writing by such the indemnified Persons; and (y) reasonably satisfactory to the Companyparties. The Company shall indemnifying party will not be liable for any settlement of any such claim, action or proceeding effected without the Company's prior its written consent, consent (which consent shall not be withheld unreasonablyunreasonably withheld, and conditioned or delayed), but if such claim, action or proceeding is settled with such consent or if there has been a final non-appealable judgment for the Company plaintiff, the indemnifying party agrees to indemnify and hold harmless any the indemnified Person party from and against any loss, claim, damage, liability, judgment loss or expense liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party will have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by the third sentence of this Section 2.08(c), the indemnifying party agrees that it will be liable for any settlement of any action proceeding effected with the without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the Companyaforesaid request and (ii) such indemnifying party has not reimbursed the indemnified party in accordance with such request or reasonably objected in writing, on the basis of the standards set forth herein, to the propriety of such reimbursement prior to the date of such settlement. The Company shall notNo indemnifying party will, without the prior written consent of each the indemnified Personparty, settle or compromise or consent to the entry effect any settlement of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding (i) in respect of which indemnification any indemnified party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not any by such indemnified Person is a party thereto)party, unless such settlement, compromise, consent or termination settlement includes an unconditional release of each such indemnified Person party from all liability arising out on claims that are the subject matter of such actionproceeding, claim litigation (ii) that involves the imposition of equitable remedies on the indemnified party or proceeding.
(b) Each Holder the imposition of Restricted Securities covered by any Registration Statement agreesobligation on the indemnified party, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 other than as a result of the Securities Act or Section 20 imposition of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of financial obligations for which the indemnified Personsperson will be indemnified hereunder, but only or (iiii) with ---- respect that includes a statement as to actions based on information relating or admission of fault, culpability, or a failure to such Holder furnished in writing act, by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a)indemnified person.
(cd) If the indemnification provided for in this Section 2.7 2.08 from the indemnifying party is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) hereunder in respect of any losses, claims, damages, liabilities, judgments or expenses Losses referred to thereinin this Section 2.08, then each applicable the indemnifying party (in the case of the Holders severally and not jointly)party, in lieu of indemnifying such indemnified party, shall will contribute to the amount paid or payable by such indemnified party as a result of such losses, claims damages, liabilities, judgments or expenses Losses (i) in such proportion as is appropriate to reflect the relative benefits received by fault of the Company on indemnifying party and indemnified party in connection with the one hand and the Holder on the actions that resulted in such Losses, as well as any other hand from sale of Restricted Securitiesrelevant equitable considerations, or (ii) if such the allocation provided by clause (i) above is not permitted by applicable lawLaw, in such proportion as is appropriate to reflect not only the relative benefits fault referred to in clause (i) above but also the relative fault benefit of the Company Company, on the one hand, and such Holder the applicable Investor, on the other hand, in connection with the statements or omissions which that resulted in such losses, claims, damages, liabilities, judgments or expensesLosses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand such indemnifying party and of such Holder on the other shall indemnified party will be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been taken by, or relates to information supplied by the Company by, such indemnifying party or by such Holder indemnified party, and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionaction. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments and expenses Losses referred to above shall will be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a2.08(c), any legal or other fees or expenses reasonably incurred by such party in connection with investigating any investigation or defending any action or claim. proceeding.
(e) The Company and each Holder of Restricted Securities covered by any Registration Statement parties agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c2.08(d) 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 the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c2.08(d), no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person guilty of “fraudulent misrepresentations 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. The indemnity Notwithstanding the provisions of Section 2.08(d) and contribution provisions contained in this Section 2.7 are 2.08(e), each Investor’s liability pursuant to Section 2.08(d) in addition respect of the offering to which such Losses relate shall not exceed an amount equal to the proceeds to such Investor (after deduction of all Underwriters’ discounts and commissions) from such offering less the amount of any damages which the Investor has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Each Investor’s obligation to contribute pursuant to this Section 2.08 is several in proportion to the number of Registrable Securities held by the Investors hereunder and not joint.
(f) For purposes of this Section 2.08, each Indemnified Person shall have the same rights to contribution as the applicable Investor, and each officer, Director and Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall have the same rights to contribution as the Company, subject in each case to the limitations set forth in the immediately preceding paragraph. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this Section 2.08, notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 2.08 or otherwise except to the extent that it has been prejudiced in any material respect by such failure. No party shall be liable for contribution with respect to any liability which action or claim settled without its written consent; provided, however, that such written consent was not unreasonably withheld.
(g) If indemnification is available under this Section 2.08, the indemnifying Person may otherwise have party will indemnify each indemnified party to the full extent provided in Sections 2.08(a) and (b) without regard to the relative fault of said indemnifying party or indemnified Persons referred to aboveparty or any other equitable consideration provided for in Section 2.08(d).
Appears in 1 contract
Samples: Registration Rights Agreement (Radius Global Infrastructure, Inc.)
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless (i) each Holder covered by any Registration StatementInitial Purchaser, (ii) each other Person who participates as an underwriter in the offering or sale of such securitiesHolder, (iii) each Personperson, if any, who controls (any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter Act (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Controlling Person"), ) and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter Initial Purchaser, the Holders or any controlling Controlling Person (any Person referred to in clause (i)each, (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified PersonIndemnified Party"), to the fullest extent lawful, from and against any and all lossesloss, claimsdamage, damagesexpense, liabilitiesliability, judgments claim or expenses, joint or several (or any actions or proceedings, whether commenced or threatened, in respect thereofthereof (including the reasonable cost of investigation) (collectively, "Claims"), to which such indemnified Person Indemnified Party may incur or become subject to under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwise, insofar as such Claims arise loss, damage, expense, liability, claim or action arises out of or are is based upon, or are caused by upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus (Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto)thereto or in any preliminary prospectus, or 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 violation by 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, and the Company of shall reimburse, as incurred, the Securities Act Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any state securities lawsuch loss, damage, expense, liability, claim or any rule or regulation promulgated under the Securities Act or any state securities lawaction in respect thereof; provided, or any other law applicable to however, that the Company relating shall not be required to provide any indemnify pursuant to this Section 6(a) in any such registration or qualification, except case insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by loss, damage, expense, liability, claim or action arises out of or is based upon any such untrue statement or omission or alleged untrue statement or omission that is based upon of a material fact contained in, or omitted from, and in conformity with information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person an Initial Purchaser or a Holder to the Company expressly for use therein; (y) provided further that, with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the preliminary Prospectusindemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, result damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that such Holder sold Securities to a Person to whom there was not sent or givengiven to such person, at or prior to the written confirmation of the sale of such saleRegistrable Securities to such person, a copy of the Prospectus, as amended or supplemented, final prospectus if the Company shall have had previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omissionHolder; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understoodprovided further, however, that the Company shall not, in connection with such action or similar or related actions or proceedings arising out of the same general allegations or circumstances, this indemnity agreement will be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified Persons, liability which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees may otherwise have to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingIndemnified Party.
(b) Each Holder of Restricted Securities covered by any Registration Statement agreesHolder, severally and not jointly, agrees to indemnify indemnify, defend and hold harmless the Company and Company, its directors, officers officers, employees, representatives, agents and any Person controlling (person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of Act (each, a "Company Indemnified Party") from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the same extent Securities Act, the Exchange Act or otherwise, insofar as the foregoing indemnity from the Company to each such loss, damage, expense, liability, claim or action arises out of the indemnified Persons, but only (i) with ---- respect to actions or is based on upon any untrue statement or alleged untrue statement of a material fact contained in information relating to such Holder furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, and (ii) including any document incorporated by reference therein, 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 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, in connection with such information; and, subject to the extent of limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the gross proceeds, if any, received by such Purchaser from the sale Company for any legal or other disposition of his or its Restricted Securities covered expenses reasonably incurred by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. 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 Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a "Proceeding") is brought against any person in respect of which indemnity may be sought against a Holder pursuant to either subsection (a) or (b) of Restricted Securities covered by any Registration Statementthis Section 6, such Holder person (the "Indemnified Party") shall promptly notify the person against whom such indemnity may be sought (the "Indemnifying Party") in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the rights right to employ its own counsel in any such case, but the fees and duties given expenses of such counsel shall be at the Company expense of such Indemnified Party unless the employment of such counsel shall have been authorized in Section 2.7(awriting by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (except in which case such Indemnifying Party shall not have the right to direct that portion of the Holder defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of 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 required liable for the 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 assume such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the defense thereof)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 Company or its directors or officers or such controlling Person 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 counsel as contemplated by the rights second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid 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 duties (iii) such Indemnified Party shall have given such Indemnifying Party at least thirty (30) days' prior notice of its intention to each Holder settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement 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 Section 2.7(a)such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(cd) If the indemnification provided for in this Section 2.7 6 is unavailable to an indemnified party Indemnified Party under Section 2.7(asubsections (a) or and (b) (other than by reason of exceptions provided in those Sections) this Section 6 in respect of any losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expenses actions referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)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, judgments claims or expenses actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder Holders or the Initial Purchasers on the other hand from sale the offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company on the one hand and such Holder of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expensesactions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such Holder the Holders or the Initial Purchasers on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder the Holders or the Initial Purchasers and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments expenses, liabilities, claims and expenses actions referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. Proceeding.
(e) The Company Company, the Holders and each Holder of Restricted Securities covered by any Registration Statement the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c) 6 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 does not take into account of the equitable considerations referred to in the immediately preceding paragraphsubsection (d) above. Notwithstanding the provisions of this Section 2.7(c)6, no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount in excess of the amount by which the dollar amount of proceeds received total price at which the Registrable Securities sold by such Holder upon it were offered to the sale of the Restricted Securities public exceeds the amount of any damages which such Holder 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 misrepresentations 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. The Holders' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 2.7 are 6 shall remain operative and in addition to full force and effect regardless of (i) any liability which termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnifying Person may otherwise have to Initial Purchasers or any person controlling any Holder or Initial Purchaser, or the indemnified Persons referred to aboveCompany, or the Company's officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Incident to any registration of any Registrable Securities pursuant to this Agreement, the Company agrees to indemnify will indemnify, reimburse and hold harmless (i) to the fullest extent permitted by law, each underwriter, each Holder covered by who offers or sells any Registration Statementsuch Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), directors, officers, employees, representatives and agents of any of them) (ii) each, a “Selling Holder”), and each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter Act (any of the Persons referred to in this clause (iii) being hereinafter referred to as each, a "controlling “Controlling Person"”), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or actions proceeding or proceedingsany claim asserted, whether commenced or threatened, in respect thereof) (collectively, "Claims"as the same are incurred), to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such Claims losses, claims, damages or liabilities arise out of or are based upon, or are caused by on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any Registration Statement related preliminary or Prospectus (definitive prospectus, or any amendment or supplement theretoto such registration statement or prospectus), or (ii) any omission or alleged omission to state therein in such document a material fact required to be stated therein in it or necessary to make the statements therein in it not misleading, (iii) any violation or a alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law, statutory law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities statutory law, (iv) any failure to register or qualify the Registrable Securities in any state where the Company or its agents has affirmatively undertaken or agreed in writing that the Company (the undertaking of any underwriter chosen by the Company being attributed to the Company) will undertake such registration or qualification on the Selling Holder’s behalf (provided that in such instance the Company shall not be so liable if it has undertaken its commercially reasonable best efforts to so register or qualify the Registrable Securities), or (v) any blue sky application or other law applicable document executed by the Company specifically for the purpose or based upon written information furnished by the Company filed in any state or other jurisdiction in order to qualify any or all of the Registrable Securities under the securities laws thereof; provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission of a material fact contained in such registration statement or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company relating to any by such underwriter, Selling Holder or Controlling Person expressly for use in such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any statement. With respect to such untrue statement or omission or alleged untrue statement or omission that is based upon in the information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person Selling Holder expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that in such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Companyregistration statement, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to Selling Holder will indemnify and hold harmless any indemnified Person from and against any losseach underwriter, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and (including its directors, officers officers, employees, representatives and any Person controlling agents), each other Holder (within the meaning including its partners (including partners of Section 15 partners and stockholders of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officerssuch partners), directors, partnersofficers, employees, representatives and agents of eachany of them, and each Controlling Person of any of them), from and against any and all losses, claims, damages, expenses and liabilities, joint or several, to which they, or any of them, may become subject under the same extent Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise as a direct result of such untrue statement or omission or alleged untrue statement or omission in the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing to the Company by or on behalf of such Selling Holder expressly for use in any Registration Statement or Prospectussuch registration statement, and (ii) to provided that the extent obligation of the gross proceedsSelling Holder will be several and not joint and several. In no event, if anyhowever, shall the liability of a Selling Holder for indemnification under this Section 5(a) exceed the net proceeds received by such Purchaser Selling Holder from the its sale or other disposition of his or its Restricted Registrable Securities covered by under such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a)registration statement.
(cb) If the indemnification provided for in this Section 2.7 5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses (i) liabilities in such proportion as is appropriate to reflect (i) the relative benefits received by the Company on Company, the one hand Selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, or the Registrable Securities and (ii) if such 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 Company Company, the Selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations; provided, however, that in the event of a registration statement filed in response to a demand for registration under Section 3(a) and in which the Company does not register any shares of capital stock, the proportion of contribution by the Company, the Selling Holders and the underwriters shall in all cases be governed solely by clause (ii) above. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Selling Holder of Restricted Securities covered by any Registration Statement agree agrees that it would not be just and equitable if contribution pursuant to this Section 2.7(c5(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Selling Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this Section 5(b) in excess of the amount by which the dollar amount of net proceeds received by such Selling Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not found guilty of such fraudulent misrepresentation. The indemnity Selling Holder’s obligations pursuant to this Section 5(b) shall be several in proportion to the amount of Registrable Securities registered by it and contribution provisions contained not joint and several.
(c) The amount required to be paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and liabilities referred to in this Section 2.7 are in addition 5 shall be deemed to any liability which the indemnifying Person may otherwise have include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified Persons referred to aboveparty in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in this Section 5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or Controlling Person of the indemnified parties. No indemnifying party, in the defense of any such claim or litigation, shall enter into a consent of entry of any judgment or enter into a settlement without the consent of the indemnified party, which consent will not be unreasonably withheld.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Personperson, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons persons referred to in this clause (iii) being hereinafter referred to as a "controlling Personperson"), ) and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person person (any Person person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise out of or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly), 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, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 Company and such Holder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 2.7(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 does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c), no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution provisions contained in this Section 2.7 are in addition to any liability which the indemnifying Person may otherwise have to the indemnified Persons referred to above.or
Appears in 1 contract
Samples: Registration Rights Agreement (Commodore Applied Technologies Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person")shall, to the fullest extent lawfulpermitted by law, from indemnify and hold harmless each Holder of Registrable Securities, its affiliates and their respective partners, directors, officers, members, employees, agents, and each Person, who is a Controlling Person of such Holder or any of the other foregoing indemnified Persons (each of the foregoing, a “Covered Person”) against any and all losses, claims, actions, damages, liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), liabilities and expenses to which such indemnified Covered Person may become subject under either Section 15 of the Securities Act applicable U.S. federal and state or Section 20 of the Exchange Act or otherwisenon-U.S. securities laws, insofar as such Claims losses, claims, actions, damages, liabilities or expenses arise out of or are based upon, or are caused by upon (i) any untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference in any Registration Statement Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or Prospectus (any successor rule thereto) or any amendment thereof or supplement thereto)thereto or any document incorporated by reference therein, or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading or (iii) any violation or alleged violation by the Company any U.S. federal or state or non-U.S. securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of the applicable Registrable Securities, and the Company shall reimburse each Covered Person for any legal or other expenses reasonably incurred by such Covered Person in connection with investigating, defending or settling any such loss, claim, action, damage or liability; provided, that, in the case of each of clauses (i), (ii), and (iii), the Company shall not be so liable in any such case to the extent that any loss, claim, action, damage, liability or expense arises out of or is based upon any such untrue statement or alleged untrue statement, or omission or alleged omission, made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto or any document incorporated by reference therein in reliance upon, and in conformity with, written information prepared and furnished to the Company by or on behalf of such Covered Person expressly for use therein. This indemnity shall be in addition to any liability the Company may otherwise have.
(b) In connection with any registration in which a Holder of Registrable Securities is participating, each such Holder shall furnish to the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus and shall, to the fullest extent permitted by law, severally and not jointly, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is a Controlling Person of the Company or any of the other foregoing indemnified Persons (each of the foregoing, a “Company Indemnified Person”) against any losses, claims, actions, damages, liabilities and expenses to which such Company Indemnified Person may become subject under applicable U.S. federal and state or non-U.S. securities laws, insofar as such losses, claims, actions, damages, liabilities or expenses arise out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained or incorporated by reference in any Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto or any document incorporated by reference therein; or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but, in the case of each of clauses (i) and (ii), only to the extent that such untrue statement or a violation by the Company of the Securities Act or any state securities lawalleged untrue statement, or any rule omission or regulation promulgated alleged omission, is made in such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any state securities law, successor rule thereto) or any other law applicable to the Company relating to any such registration amendment thereof or qualificationsupplement thereto in reliance upon, except insofar as such lossesand in conformity with, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon written information relating to such indemnified Person prepared and furnished in writing to the Company by or on behalf of any of such indemnified Person Holder expressly for use therein, and each such Holder shall reimburse each Company Indemnified Person for any legal or other expenses reasonably incurred by such Company Indemnified Person in connection with investigating, defending or settling any such loss, claim, action, damage or liability; (yprovided, that the obligation to indemnify pursuant to this Section 6(b) with respect shall not exceed an amount equal to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to net proceeds received by such Holder in accordance with this Agreement and said Prospectus, as amended the sale of Registrable Securities to which such Registration Statement or supplemented, would have corrected Prospectus relates. This indemnity shall be in addition to any liability which each such untrue statement or omission; or Holder may otherwise have.
(zc) as a result of Any Person entitled to indemnification hereunder shall give prompt written notice to the use by an indemnified Person indemnifying party of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons claim with respect to which indemnity may be sought against the Companyit seeks indemnification; provided, such indemnified Person shall promptly that any failure or delay to so notify the Company indemnifying party shall not relieve the indemnifying party of its obligations hereunder, except to the extent that the indemnifying party is actually and materially prejudiced by reason of such failure or delay. In case a claim or an action that is subject or potentially subject to indemnification hereunder is brought against an indemnified party, the Company indemnifying party shall assume the defense thereof. Such indemnified Person be entitled to participate in and shall have the right right, exercisable by giving written notice to employ separate counsel in the indemnified party as promptly as practicable after receipt of written notice from such indemnified party of such claim or action, to assume, at the indemnifying party’s expense, the defense of any such action and claim or action, with counsel reasonably acceptable to the indemnified party; provided, that any indemnified party shall continue to be entitled to participate in the defense thereofof such claim or action, with counsel of its own choice, but the fees indemnifying party shall not be obligated to reimburse the indemnified party for any fees, costs and expenses of such counsel shall be at the expense of subsequently incurred by the indemnified Person party in connection with such defense unless (iA) the employment of such counsel shall have been specifically authorized indemnifying party has agreed in writing by the Companyto pay such fees, costs and expenses, (iiB) the Company shall have indemnifying party has failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such claim or action on behalf within a reasonable time after receipt of notice of such claim or action, or (C) the use of counsel chosen by the indemnifying party to represent the indemnified Person), it being understood, however, that the Company shall not, in connection party would present such counsel with such action or similar or related actions or proceedings arising out a conflict of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedinginterest.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(cd) If the indemnification provided for in this Section 2.7 6(d) is held by a court of competent jurisdiction to be unavailable to to, or unenforceable by, an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any lossesloss, claimsclaim, damagesaction, liabilitiesdamage, judgments liability or expenses expense referred to thereinherein, then each the applicable indemnifying party (in the case of the Holders severally and not jointly)party, in lieu of indemnifying such indemnified partyparty hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such lossesloss, claims damagesclaim, liabilitiesaction, judgments damage, liability or expenses (i) expense in such proportion as is appropriate to reflect the relative benefits received by fault of the Company indemnifying party, on the one hand hand, and of the Holder indemnified party, on the other hand from sale of Restricted Securitieshand, or (ii) if such 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 Company and such Holder in connection with the statements statements, omissions or omissions violations which resulted in such lossesloss, claimsclaim, damagesaction, liabilitiesdamage, judgments liability or expenses, expense as well as any other relevant equitable considerations. The relative fault of the Company indemnifying party, on the one hand hand, and of such Holder the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company indemnifying party or by such Holder the indemnified party, whether the violation of the U.S. federal and state or non-U.S. securities law applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of the applicable Registrable Securities was perpetrated by the indemnifying party or the indemnified party, and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement statement, omission or omissionviolation. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement parties agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c) hereto were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of or allocation which that does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c6(d), . In no Holder (and none of its related indemnified Persons) event shall be required to contribute, in the aggregate, any amount in excess of the amount by which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 6(d) exceed an amount equal to the dollar amount of gross proceeds received by such Holder upon in the sale of the Restricted Registrable Securities exceeds the amount of any damages which that gives rise to such Holder has otherwise been required obligation to pay by reason of such untrue statement or omission or alleged omissioncontribute. No Person indemnified party guilty or liable of fraudulent misrepresentations (misrepresentation within the meaning of Section 11(f) of the Securities Act) Act shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. .
(e) The indemnity and contribution provisions contained in of this Section 2.7 are 6(e) shall remain in addition to full force and effect regardless of any liability which investigation made by or on behalf of any indemnified party or any officer, director or Controlling Person of such indemnified party and shall survive the indemnifying Person may otherwise have to the indemnified Persons referred to abovetransfer of any Registrable Securities by any Holder.
Appears in 1 contract
Samples: Registration Rights Agreement (Rent a Center Inc De)
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless (i) each Holder covered by any Registration StatementInitial Purchaser, (ii) each other Person who participates as an underwriter in the offering or sale of such securitiesHolder, (iii) each Personperson, if any, who controls (any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (a “Controlling Person”) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter Initial Purchaser, the Holders or any controlling Controlling Person (any Person referred to in clause (ieach, an “Indemnified Party”), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all lossesloss, claimsdamage, damagesexpense, liabilitiesliability, judgments claim or expenses, joint or several (or any actions or proceedings, whether commenced or threatened, in respect thereofthereof (including the reasonable cost of investigation) (collectively, "Claims"), to which such indemnified Person Indemnified Party may incur or become subject to under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwise, insofar as such Claims arise loss, damage, expense, liability, claim or action arises out of or are is based upon, or are caused by upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus (Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto)thereto or in any preliminary prospectus, or 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 violation by 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, and the Company of shall reimburse, as incurred, the Securities Act Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any state securities lawsuch loss, damage, expense, liability, claim or any rule or regulation promulgated under the Securities Act or any state securities lawaction in respect thereof; provided, or any other law applicable to however, that the Company relating shall not be required to provide any indemnify pursuant to this Section 6(a) in any such registration or qualification, except case insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by loss, damage, expense, liability, claim or action arises out of or is based upon any such untrue statement or omission or alleged untrue statement or omission that is based upon of a material fact contained in, or omitted from, and in conformity with information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person an Initial Purchaser or a Holder to the Company expressly for use thereinin, any Shelf Registration Statement or any Prospectus, including information provided by such Holder in a Notice and Questionnaire; (y) provided further that, with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the preliminary Prospectusindemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, result damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that such Holder sold Securities to a Person to whom there was not sent or givengiven to such person, at or prior to the written confirmation of the sale of such saleRegistrable Securities to such person, a copy of the Prospectus, as amended or supplemented, final prospectus if the Company shall have had previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omissionHolder; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understoodprovided further, however, that the Company shall not, in connection with such action or similar or related actions or proceedings arising out of the same general allegations or circumstances, (i) this indemnity agreement will be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all liability which the indemnified Persons, which firm shall be (x) designated by Company may otherwise have to such indemnified Persons; Indemnified Party and (yii) reasonably satisfactory this indemnity agreement will not apply to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liabilityexpense, judgment liability or expense claim arising from an offer or sale, occurring during a Suspension Period, of Registrable Securities by reason of any settlement of any action effected a Notice Holder to whom the Company theretofore provided a Suspension Notice in accordance with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party theretoSection 3(i), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agreesHolder, severally and not jointly, agrees to indemnify indemnify, defend and hold harmless the Company and Company, its directors, officers officers, employees, representatives, agents and any Person controlling (person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the same extent Securities Act, the Exchange Act or otherwise, insofar as the foregoing indemnity from the Company to each of the indemnified Personssuch loss, but only damage, expense, liability, claim or action (i) with ---- respect to actions arises out of or is based on upon any untrue statement or alleged untrue statement of a material fact contained in information relating to such Holder furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, and including any document incorporated by reference therein, 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 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, in connection with such information, (ii) arises out of or is based upon a sale of Registrable Securities during a Suspension Period by a Notice Holder to whom the Company theretofore provided a Suspension Notice in accordance with Section 3(i) or (iii) arises out of or is based upon a sale of Registrable Securities by a Notice Holder without delivery of the most recent applicable Prospectus provided to such Holder by the Company pursuant to Section 3(g) or Section 2(d)(i)(C); and, subject to the extent of limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the gross proceeds, if any, received by such Purchaser from the sale Company for any legal or other disposition of his or its Restricted Securities covered expenses reasonably incurred by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. 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 Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought against a Holder pursuant to either subsection (a) or (b) of Restricted Securities covered by any Registration Statementthis Section 6, such Holder person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise, except to the extent the Indemnifying Party is materially prejudiced thereby. Such Indemnified Party shall have the rights right to employ its own counsel in any such case, but the fees and duties given expenses of such counsel shall be at the Company expense of such Indemnified Party unless the employment of such counsel shall have been authorized in Section 2.7(awriting by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (except in which case such Indemnifying Party shall not have the right to direct that portion of the Holder defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of 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 required liable for the 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 assume such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the defense thereof)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. No Indemnifying Party shall, without the Company prior written consent of any Indemnified Party, effect any settlement of any pending or its directors threatened Proceeding in respect of which such Indemnified Party is or officers could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a)Indemnified Party.
(cd) If the indemnification provided for in this Section 2.7 6 is unavailable to an indemnified party Indemnified Party under Section 2.7(asubsections (a) or and (b) (other than by reason of exceptions provided in those Sections) this Section 6 in respect of any losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expenses actions referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)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, judgments claims or expenses actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder Holders or the Initial Purchasers on the other hand from sale the offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company on the one hand and such Holder of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expensesactions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such Holder the Holders or the Initial Purchasers on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder the Holders or the Initial Purchasers and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments expenses, liabilities, claims and expenses actions referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. Proceeding.
(e) The Company Company, the Holders and each Holder of Restricted Securities covered by any Registration Statement the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c) 6 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 does not take into account of the equitable considerations referred to in the immediately preceding paragraphsubsection (d) above. Notwithstanding the provisions of this Section 2.7(c)6, no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount in excess of the amount by which the dollar amount of proceeds received total price at which the Registrable Securities sold by such Holder upon it were offered to the sale of the Restricted Securities public exceeds the amount of any damages which such Holder 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 misrepresentations 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. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 2.7 are 6 shall remain operative and in addition to full force and effect regardless of (i) any liability which termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnifying Person may otherwise have to Initial Purchasers or any person controlling any Holder or Initial Purchaser, or the indemnified Persons referred to aboveCompany, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Article IV, and subject to applicable law, the Company agrees to will indemnify and hold harmless each underwriter or Investor who offers or sells any such Registrable Shares in connection with such registration statement (a "Selling Stockholder") (and in each case its partners (including partners of partners and stockholders of any such partners) and directors, officers, employees and agents of any of them) and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a "Controlling Person"), 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 under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading, or sale of such securities, (iii) any violation by the Company of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Stockholder or Controlling Person expressly for use in such registration statement or any willful or knowing violation of applicable securities laws. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Selling Stockholder expressly for use in such registration statement, such Selling Stockholder will indemnify and hold harmless each Personunderwriter, if anythe Company (including its directors, officers, employees and agents), each Investor (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees and agents of any of them) so registered, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar at common law or otherwise to the same extent provided in the immediately preceding sentence. In no event, however, shall the liability of a Selling Stockholder for indemnification under this Section 4.6(a) in its capacity as such Claims arise out of (and not in its capacity as an officer or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company director of the Securities Act or any state securities law, or any rule or regulation promulgated under Company) exceed the Securities Act or any state securities law, or any other law applicable to lesser of (i) that proportion of the Company relating to any such registration or qualification, except insofar as total of such losses, claims, damages, liabilities, judgments damages or expenses of any such liabilities indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing against equal to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy proportion of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to total securities sold under such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue registration statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities which is being sold by such Holder. In case any action shall be brought Selling Stockholder or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated proceeds received by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement Selling Stockholder from its sale of any Registrable Shares under such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingregistration statement.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 4.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 4.6, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand indemnified party, the other Selling Stockholders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, the Registrable Shares or (ii) if such 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 Company Company, the other Selling Stockholders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Stockholders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Stockholders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Shares. The relative fault of the Company on Company, the one hand Selling Stockholders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Stockholders or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of Company, the lossesSelling Stockholders, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c4.6(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no Holder (and none of its however, shall a Selling Stockholder or any related indemnified Persons) shall party be required to contribute, in the aggregate, contribute any amount under this Section 4.6(b) in excess of the amount lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Registrable Shares sold under such registration statement which are being sold by which such Selling Stockholder or (ii) the dollar amount of proceeds received by such Holder upon the Selling Stockholder from its sale of the Restricted Securities exceeds the amount of any damages which Registrable Shares under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty of such fraudulent misrepresentation. .
(c) The indemnity amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 4.6 shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in addition this Section 4.6 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties.
(d) Any person entitled to indemnification hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification, but the failure to do so shall not relieve the indemnifying party from any liability, except to the extent it is actually prejudiced by the failure or delay in giving such notice, and (ii) unless in such indemnified party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party will not be subject to any liability which the indemnifying Person may otherwise have to for any settlement made by the indemnified Persons referred to above.party without its consent (but such consent will not be unreasonably
Appears in 1 contract
Indemnification; Contribution. (a) The If any Registrable Securities are included in a registration statement under this Agreement:
11.1. To the extent permitted by applicable law, the Company agrees to shall indemnify and hold harmless (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and Xx. Xxxx against any and all losses, claims, damages, liabilities, judgments or expenses, liabilities and expenses (joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"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, or to which such indemnified Person any of the foregoing Persons may otherwise become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state laws, insofar as such Claims losses, claims, damages, liabilities and expenses arise out of or are based uponupon any of the following statements, omissions or are caused by any violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any Registration Statement preliminary prospectus or Prospectus (or any amendment or supplement thereto)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 therein, or necessary to make the statements therein not misleading; provided, however, that the indemnification required by this Section 11.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company 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 Violation that occurs in reliance upon and in conformity with information furnished in writing to the Company by the indemnified party expressly for use in connection with such registration.
11.2. To the extent permitted by applicable law, Xx. Xxxx shall indemnify and hold harmless the Company, each of the directors of the Company, each of the officers of the Company who shall have signed the registration statement, each Person, if any, who controls the Company within the meaning of the Securities Act 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 any state securities lawthreatened action, suit, proceeding or investigation, or to which any rule or regulation promulgated of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or any other federal or state securities lawlaws, or any other law applicable to the Company relating to any such registration or qualification, except but only insofar as such losses, claims, damages, liabilitiesliabilities and expenses arise out of or are based upon any Violation, judgments in each case to the extent that such Violation arises out of or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating furnished by Xx. Xxxx in writing expressly for use in connection with such registration; provided, however, that (x) any indemnification required by this Section 11.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of Xx. Xxxx (which consent shall not be unreasonably withheld) and (y) in no event shall the amount of any indemnity under this Section 11.2 exceed the gross proceeds from the applicable offering received by Xx. Xxxx.
11.3. Promptly after receipt by an indemnified party under this Section 11 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified Person furnished in writing party may make a claim under this Section 11, such indemnified party shall deliver to the Company indemnifying party a written notice thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and disbursements and expenses to be paid by or on behalf of any the indemnifying party, if representation of such indemnified Person expressly for use therein; (y) with respect party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the preliminary Prospectusindemnifying party within a reasonable time following the commencement of any such action, result from the fact that if prejudicial to its ability to defend such Holder sold Securities to a Person to whom there was not sent or givenaction, at or prior shall relieve such indemnifying party of any liability to the written confirmation indemnified party under this Section 11 to the extent of such sale, a copy prejudice but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 11. Any fees and expenses incurred by the Prospectusindemnified 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 amended or supplementedincurred, if the Company shall have previously furnished copies within thirty (30) days of written notice thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or the indemnifying party (z) as a result regardless of the use by whether it is ultimately determined that an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(ivparty is not entitled to indemnification hereunder), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, Any such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person party shall have the right to employ separate counsel in any such action action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense expenses of the such indemnified Person party unless (i) the employment of indemnifying party has agreed to pay such counsel shall have been specifically authorized in writing by the Company, fees and expenses or (ii) the Company indemnifying party shall have failed to promptly assume the defense and employ counselof such action, claim or proceeding or (iii) the named parties to any such action action, claim or proceeding (including any implied impleaded parties) include both the such indemnified Person party and the Company indemnifying party, and the such indemnified Person party shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which that are different from or additional in addition to those available to the Company indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party could not faithfully represent the indemnified party (in which case case, if such indemnified party notifies the Company indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action action, claim or proceeding on behalf of the such indemnified Person)party, it being understood, however, that the Company indemnifying party shall not, in connection with any one such action action, claim or proceeding or separate but substantially similar or related actions 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 (in addition to any together with appropriate local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto)parties, unless in the reasonable judgment of such settlement, compromise, consent or termination includes an unconditional release indemnified party a conflict of each interest may exist between such indemnified Person from all liability arising out party and any other of such indemnified parties with respect to such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally in which event the indemnifying party shall be obligated to pay the fees and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf expenses of such Holder expressly for use in any Registration Statement additional counsel or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(acounsels).
(c) 11.4. If the indemnification provided for in required by this Section 2.7 11 from the indemnifying party is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) hereunder in respect of any losses, claims, damages, liabilities, judgments liabilities or expenses referred to therein, then each applicable in this Section 11:
(i) The indemnifying party (in the case of the Holders severally and not jointly)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 claims, damages, liabilities, judgments liabilities or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 Company indemnifying party and such Holder indemnified parties in connection with the statements or omissions which actions that resulted in such losses, claims, damages, liabilities, judgments liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand such indemnifying party and of such Holder on the other indemnified parties shall be determined by reference to, among other things, whether the untrue any Violation has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company by, such indemnifying party or by such Holder indemnified parties, and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionViolation. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a)11.1 and Section 11.2, any legal or other fees or expenses reasonably incurred by such party in connection with investigating any investigation or defending any action or claim. proceeding.
(ii) The Company and each Holder of Restricted Securities covered by any Registration Statement parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c) 11.4 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 the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c11.4(i), no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentations 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.
11.5. The indemnity and contribution provisions contained If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 2.7 are in addition to any liability which the indemnifying Person may otherwise have 11 without regard to the relative fault of such indemnifying party or indemnified Persons party or any other equitable consideration referred to abovein Section 11.4.
11.6. The obligations of the Company and Xx. Xxxx under this Section 11 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Registration Rights Agreement (CDW Computer Centers Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless each Initial Purchaser, each Holder, each person (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each a “Controlling Person”), if any, who controls (any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), Act and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter Initial Purchaser, the Holders or any controlling Controlling Person (any Person referred to in clause (ieach, an “Indemnified Party”), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all lossesloss, claimsdamage, damagesexpense, liabilitiesliability, judgments claim or expenses, joint or several (or any actions or proceedings, whether commenced or threatened, in respect thereofthereof (including the reasonable cost of investigation) (collectively, "Claims"), to which such indemnified Person Indemnified Party may incur or become subject to under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwise, insofar as such Claims arise loss, damage, expense, liability, claim or action arises out of or are is based upon, or are caused by upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus (Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto)thereto or in any preliminary prospectus, or 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 violation by 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 such statements were made, not misleading, and the Company of shall reimburse, as incurred, the Securities Act Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any state securities lawsuch loss, damage, expense, liability, claim or any rule or regulation promulgated under the Securities Act or any state securities lawaction in respect thereof; provided, or any other law applicable to however, that the Company relating shall not be required to provide any indemnification pursuant to this Section 6(a) in any such registration or qualification, except case insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by loss, damage, expense, liability, claim or action arises out of or is based upon any such untrue statement or omission or alleged untrue statement or omission that is based upon of a material fact contained in, or omitted from, and in conformity with information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person an Initial Purchaser or a Holder to the Company expressly for use thereinin, any Shelf Registration Statement or any Prospectus; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understoodprovided further, however, that the Company shall not, in connection with such action or similar or related actions or proceedings arising out of the same general allegations or circumstances, this indemnity agreement will be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified Persons, liability which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees may otherwise have to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingIndemnified Party.
(b) Each Holder of Restricted Securities covered by any Registration Statement agreesHolder, severally and not jointly, agrees to indemnify indemnify, defend and hold harmless the Company and Company, its directors, officers officers, employees and any Person controlling (person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act) , the CompanyExchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i“Holder Information”) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, and (ii) or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information required to be stated in any Shelf Registration Statement or Prospectus or necessary to make such Holder Information not misleading; and, subject to the extent of limitation set forth in the gross proceedsimmediately preceding clause, if anyeach Holder shall reimburse, received by such Purchaser from as incurred, the sale Company for any legal or other disposition of his or its Restricted Securities covered expenses reasonably incurred by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. 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, pursuant to the Shelf Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statementpursuant to either Section 6(a) or Section 6(b), such Holder person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the rights right to employ its own counsel in any such case, but the fees and duties given expenses of such counsel shall be at the Company expense of such Indemnified Party unless the employment of such counsel shall have been authorized in Section 2.7(awriting by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (except in which case such Indemnifying Party shall not have the right to direct that portion of the Holder defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of 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 required liable for the 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 assume such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the defense thereof)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 Company or its directors or officers or such controlling Person 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 counsel as contemplated by the rights second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and duties (iii) such Indemnified Party shall have given such Indemnifying Party at least thirty (30) days’ prior notice of its intention to each Holder settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement 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 Section 2.7(a)such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such Indemnified Party.
(cd) If the indemnification provided for in this Section 2.7 6 is unavailable to an indemnified party Indemnified Party under Section 2.7(a6(a) or (b) (other than by reason of exceptions provided in those Sections) Section 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expenses actions referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)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, judgments claims or expenses actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and by the Holder Holders or the Initial Purchasers, on the other hand hand, from sale the offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, on the one hand, and such Holder of the Holders or the Initial Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expensesactions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of such Holder the Holders or the Initial Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder the Holders or the Initial Purchasers and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments expenses, liabilities, claims and expenses actions referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. Proceeding.
(e) The Company Company, the Holders and each Holder of Restricted Securities covered by any Registration Statement the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c) 6 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 does not take into account of the equitable considerations referred to in the immediately preceding paragraphSection 6(d) above. Notwithstanding the provisions of this Section 2.7(c)6, no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount in excess of the amount by which the dollar amount of proceeds received total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder upon were offered to the sale of the Restricted Securities public exceeds the amount of any damages which such Holder 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 misrepresentations 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. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 2.7 are 6 shall remain operative and in addition to full force and effect regardless of (i) any liability which termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnifying Person may otherwise have to Initial Purchasers or any person controlling any Holder or Initial Purchaser, or the indemnified Persons referred to aboveCompany, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees Incident to any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, Medidata will indemnify and hold harmless each underwriter and each Holder who offers or sells any such Registrable Securities in connection with such registration statement (including such Holder’s partners (including partners of partners and stockholders of any such partners), and directors, officers, employees, representatives and agents of any of them (a “Selling Holder”), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”)) 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, as the same are incurred), to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading, or sale of such securities, (iii) any violation by Medidata of the Securities Act, any state securities or “blue sky” laws or any rule or regulation thereunder in connection with such registration; provided, however, that Medidata will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to Medidata by such underwriter, Selling Holder or Controlling Person expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to Medidata by such Selling Holder expressly for use in such registration statement, such Selling Holder will indemnify and hold harmless each Personunderwriter, if anyMedidata (including its directors, officers, employees, representatives and agents) and each other Holder (including such Holder’s partners (including partners of partners and stockholders of such partners) and directors, officers, employees, representatives and agents of any of them, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwise, insofar as such Claims arise out of other federal or are based upon, state statutory law or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or givenregulation, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on common law or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 is unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly), 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, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 Company and such Holder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 2.7(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 does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c), no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution provisions contained in this Section 2.7 are in addition to any liability which the indemnifying Person may otherwise have to the indemnified Persons referred to above.extent
Appears in 1 contract
Samples: Registration Rights Agreement (Medidata Solutions, Inc.)
Indemnification; Contribution. (a) The Company agrees To the extent permitted by law, the Partnership will indemnify each Holder, each of its officers, directors, members and partners, and each person controlling such Holder, with respect to indemnify which registration, qualification or compliance has been effected pursuant to this Agreement, and hold harmless (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Personunderwriter, if any, and each person who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person")underwriter, and (iv) the respective officersagainst all claims, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, liabilities and judgments or expenses, joint or several (or actions actions, proceedings or proceedingssettlements, whether commenced or threatenedif such settlements are effected with the written consent of the Partnership, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise arising out of or are based upon, or are caused by on any untrue statement (or alleged untrue statement statement) of a material fact contained in any Registration Statement prospectus, offering circular or Prospectus other document (including any related registration statement, notification or the like) incident to any amendment such registration, qualification or supplement thereto)compliance, or 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, or a any violation by the Company Partnership of the Securities Act or any state securities law, the Exchange Act or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law thereunder applicable to the Company relating to Partnership, and will reimburse each such Holder, each of its officers, directors, members and partners, and each person controlling such Holder, each such underwriter and each person who controls any such registration underwriter, for any legal and any other expenses reasonably incurred in connection with investigating and defending or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of settling any such indemnified Personclaim, loss, damage, liability, action or proceeding; (x) are caused by provided, however, that the Partnership will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to the Partnership by such Holder or underwriter and stated to be specifically for use therein, and provided, further, that the Partnership shall not be liable to the extent that any such loss, claim, damage, liability, expense or action arises out of such person’s failure to send or give a copy of the final prospectus or supplement to the persons asserting an untrue statement or alleged untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of the sale of Registrable Securities to such saleperson if such statement or omission was corrected in such final prospectus or supplement.
(b) To the extent permitted by law, a copy each Holder will, if Registrable Securities held by such Holder are included in the securities as to which such registration, qualification or compliance is being effected, severally and not jointly indemnify the Partnership, each of its directors, officers and controlling persons, and each underwriter, if any, of the ProspectusPartnership’s securities covered by such a registration statement, each person who controls the Partnership or such underwriter within the meaning of the Securities Act or the Exchange Act or the rules and regulations thereunder, each other Holder and Other Partner (if and to the extent such Other Partner has agreed to indemnify the Holders as amended set forth in this clause (b)) including Registrable Securities and other securities in the securities as to which such registration, qualification or supplementedcompliance is being effected, if the Company shall have previously furnished copies thereof to and each of their officers, directors, members and partners, and each person controlling such Holder or Other Partner, against all claims, losses, damages and liabilities (or actions, proceedings or settlements in accordance respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Partnership and such Holders, Other Partners, directors, officers, members, partners, persons, underwriters or control persons for any legal or any other expenses reasonably incurred in connection with this Agreement investigating and said Prospectusdefending or settling any such claim, as amended loss, damage, liability, action or supplementedproceeding, would have corrected in each case to the extent, but only to the extent, that 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 upon and in conformity with written information furnished to the Partnership by such Holder and stated to be specifically for use therein; or provided, however, that the obligations of each such Holder hereunder shall be limited to an amount equal to the net proceeds to each such Holder of securities sold as contemplated herein.
(zc) as a result of Each party entitled to indemnification under this Section 7 (the use by an indemnified Person “Indemnified Party”) shall give notice to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect claim as to which indemnity may be sought against sought, and shall permit the CompanyIndemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, including the employment of counsel reasonably satisfactory to such indemnified Person shall promptly notify the Company Indemnified Party, and the Company shall assume the defense thereofpayment of all reasonable expenses of such defense. Such indemnified Person Indemnified Party shall have the right to employ separate counsel in any such action or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person such Indemnified Party unless (ia) the employment of Indemnifying Party has agreed to pay such counsel shall have been specifically authorized in writing by the Company, fees and expenses or (iib) the Company shall have failed Indemnifying Party fails promptly to assume the defense and of such action or proceeding or fails to employ counsel, counsel reasonably satisfactory to such Indemnified Party or (iiic) the named parties to any such action or proceeding (including any implied impleaded parties) include both such Indemnified Party and Indemnifying Party (or an affiliate of the indemnified Person Indemnifying Party), and the Company and the indemnified Person such Indemnified Party shall have been advised in writing by its counsel that there may be one is a conflict of interest on the part of counsel employed by the Indemnifying Party to represent such Indemnified Party and such counsel reasonably determines that it is inappropriate for such counsel to represent both the Indemnifying Party (or more legal defenses available to it which are different from or additional to those available to such affiliate of the Company Indemnifying Party) and the Indemnified Party (in which case case, if such Indemnified Party notifies the Company Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense of such action or proceeding on behalf of such Indemnified Party). Notwithstanding the indemnified Person)foregoing, it being understood, however, that the Company Indemnifying Party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable at any time for the reasonable fees and expenses of more than one separate firm of attorneys (together in addition to any each case with appropriate local counsel) at any time for as to all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the CompanyIndemnified Parties. The Company failure of any Indemnified Party to give notice as provided herein shall not be liable for any settlement relieve the Indemnifying Party of its obligations under this Agreement, unless such failure to notify materially adversely affects the Indemnifying Party’s ability to defend such action. No Indemnifying Party, in the defense of any such action claim or proceeding effected without the Company's prior written consentlitigation, which consent shall not be withheld unreasonablyshall, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected except with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified PersonIndemnified Party, settle or compromise or consent to the entry of any judgment on or otherwise seek enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to terminate any pending or threatened action, claim, litigation or proceeding such Indemnified Party of a release from all liability in respect of which indemnification such claim or contribution litigation. 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 sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out reasonably required in connection with the defense of such action, claim and litigation or proceedingresulting therefrom.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(cd) If the indemnification provided for in this Section 2.7 is unavailable to 7 shall for any reason be unenforceable by an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided Indemnified Party, although otherwise available in those Sections) in respect of any losses, claims, damages, liabilities, judgments or expenses referred to thereinaccordance with its terms, then each applicable indemnifying party (in the case of the Holders severally and not jointly)Indemnifying Party shall, 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 the losses, claims claims, damages, liabilities, judgments liabilities or expenses (i) with respect to which such Indemnified Party has claimed indemnification, in such proportion as is appropriate to reflect the relative benefits received by fault of the Company Indemnified Party on the one hand and the Holder Indemnifying Party on the other hand from sale of Restricted Securities, or (ii) if such 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 Company and such Holder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments liabilities or expenses, as well as any other relevant equitable considerations. The relative fault fault, in the case of the Company on the one hand and of such Holder on the other an untrue statement, alleged untrue statement, omission or alleged omission, shall be determined by reference toby, among other things, whether the untrue or such statement, alleged untrue statement of a material fact or the statement, omission or alleged omission to state a material fact relates to information supplied by the Company Indemnifying Party or by the Indemnified Party, and such Holder and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement statement, alleged statement, omission or alleged omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company Partnership and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant hereto were to this Section 2.7(c) were be 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 does not take into account such equitable considerations. The amount paid or payable by an Indemnified Party as a result of the equitable considerations losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c), no Holder (and none of its related indemnified Persons) herein shall be required deemed to contribute, in the aggregate, include any amount in excess of the amount by which the dollar amount of proceeds received legal or other expenses reasonably incurred by such Holder upon Indemnified Party in connection with investigating or defending against any action or claim which is the sale of subject hereof before the Restricted Securities exceeds Indemnifying Party assumes the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissiondefense thereof. No Person person guilty of fraudulent misrepresentations 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 fraudulent misrepresentation. The indemnity and contribution provisions .
(e) Anything to the contrary contained in this Section 2.7 are 7 notwithstanding, no Holder shall be liable for any indemnification or contribution in addition to excess of the net proceeds received by it from any liability sale of Registrable Securities which the indemnifying Person may otherwise have to the indemnified Persons referred to abovehas been registered hereunder.
Appears in 1 contract
Samples: Registration Rights Agreement (EverBank Financial Corp)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Personperson, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons persons referred to in this clause (iii) being hereinafter referred to as a "controlling Personperson"), ) and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person person (any Person person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise out of or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a Blackout Notice or a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv2.4(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, counsel or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; Persons and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of eacheach person, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a2.8(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person person shall have the rights and duties given to each Holder by Section 2.7(a2.8(a).
(c) If the indemnification provided for in this Section 2.7 2.8 is unavailable to an indemnified party under Section 2.7(a2.8(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly), 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, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, Securities or (ii) if such 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 Company and such Holder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a2.8(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c2.8(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 does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c), 2.8(c) no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentations (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. The indemnity indemnity, and contribution provisions contained in this Section 2.7 2.8 are in addition to any liability which the indemnifying Person person may otherwise have to the indemnified Persons persons referred to above.
Appears in 1 contract
Samples: Registration Rights Agreement (Senesco Technologies Inc)
Indemnification; Contribution. (a) The Incident to any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company agrees to will indemnify and hold harmless (i) each underwriter, each Holder covered by who offers or sells any Registration Statementsuch Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), directors, officers, employees, representatives and agents of any of them) (ii) each, a “Selling Holder”), and each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter Act (any of the Persons referred to in this clause (iii) being hereinafter referred to as each, a "controlling “Controlling Person"”), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or actions proceeding or proceedingsany claim asserted, whether commenced or threatened, in respect thereof) (collectively, "Claims"as the same are incurred), to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such Claims losses, claims, damages or liabilities arise out of or are based upon, or are caused by on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any Registration Statement related preliminary or Prospectus (definitive prospectus, or any amendment or supplement theretoto such registration statement or prospectus), or (ii) any omission or alleged omission to state therein in such document a material fact required to be stated therein in it or necessary to make the statements therein in it not misleading, (iii) any violation or a alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law, law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law, (iv) any failure to register or qualify the Registrable Securities in any state where the Company or its agents has affirmatively undertaken or agreed in writing that the Company (the undertaking of any underwriter chosen by the Company being attributed to the Company) will undertake such registration or qualification on the Selling Holder’s behalf (provided that in such instance the Company shall not be so liable if it has undertaken its best efforts to so register or qualify the Registrable Securities), or (v) any blue sky application or other law applicable document executed by the Company specifically for the purpose or based upon written information furnished by the Company filed in any state or other jurisdiction in order to qualify any or all of the Registrable Securities under the securities laws thereof; provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission of a material fact contained in such registration statement or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company relating to any by such underwriter, Selling Holder or Controlling Person expressly for use in such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any statement. With respect to such untrue statement or omission or alleged untrue statement or omission that is based upon in the information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person Selling Holder expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that in such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Companyregistration statement, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings 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 (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to Selling Holder will indemnify and hold harmless any indemnified Person from and against any losseach underwriter, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and (including its directors, officers officers, employees, representatives and any Person controlling agents), each other Holder (within the meaning including its partners (including partners of Section 15 partners and stockholders of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officerssuch partners), directors, partnersofficers, employees, representatives and agents of eachany of them, and each Controlling Person of any of them), from and against any and all losses, claims, damages, expenses and liabilities, joint or several, to which they, or any of them, may become subject under the same extent Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise as a direct result of such untrue statement or omission or alleged untrue statement or omission in the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing to the Company by or on behalf of such Selling Holder expressly for use in any Registration Statement or Prospectussuch registration statement. In no event, and (iihowever, shall the liability of a Selling Holder for indemnification under this Section 5(a) to exceed the extent of the gross proceeds, if any, net proceeds received by such Purchaser Selling Holder from the its sale or other disposition of his or its Restricted Registrable Securities covered by under such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a)registration statement.
(cb) If the indemnification provided for in this Section 2.7 5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses (i) liabilities in such proportion as is appropriate to reflect (i) the relative benefits received by the Company on Company, the one hand Selling Holders and the Holder on underwriters from the other hand from sale offering of Restricted Securities, or the Registrable Securities and (ii) if such 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 Company Company, the Selling Holders and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations; provided, however, that in the event of a registration statement filed in response to a demand for registration under Section 3(a) or Section 3(b) and in which the Company does not register any shares of capital stock, the proportion of contribution by the Company, the Selling Holders and the underwriters shall in all cases be governed solely by clause (ii) above. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Holders and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Holders or by such Holder the underwriters and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement the Selling Holders agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c5(b) were determined by pro rata or per capita allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 2.7(c)In no event, no however, shall a Selling Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount under this Section 5(b) in excess of the amount by which the dollar amount of net proceeds received by such Selling Holder upon the from its sale of the Restricted Registrable Securities exceeds the amount of any damages which under such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omissionregistration statement. No Person found guilty of fraudulent misrepresentations misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not found guilty of such fraudulent misrepresentation. .
(c) The indemnity amount required to be paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and contribution provisions contained liabilities referred to in this Section 2.7 are in addition 5 shall be deemed to any liability which the indemnifying Person may otherwise have include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified Persons referred to aboveparty in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in this Section 5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or Controlling Person of the indemnified parties. No indemnifying party, in the defense of any such claim or litigation, shall enter into a consent of entry of any judgment or enter into a settlement without the consent of the indemnified party, which consent will not be unreasonably withheld.
Appears in 1 contract
Samples: Registration Rights Agreement (First Mercury Financial Corp)
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless the Initial Purchaser, each Holder, each person (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each a “Controlling Person”), if any, who controls (the Initial Purchaser or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), Act and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter the Initial Purchaser, the Holders or any controlling Controlling Person (any Person referred to in clause (ieach, an “Indemnified Party”), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all lossesloss, claimsdamage, damagesexpense, liabilitiesliability, judgments claim or expenses, joint or several (or any actions or proceedings, whether commenced or threatened, in respect thereofthereof (including the reasonable cost of investigation) (collectively, "Claims"), to which such indemnified Person Indemnified Party may incur or become subject to under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwise, insofar as such Claims arise loss, damage, expense, liability, claim or action arises out of or are is based upon, or are caused by upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus (Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto)thereto or in any preliminary prospectus, or 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 violation by 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 such statements were made, not misleading, and the Company of shall reimburse, as incurred, the Securities Act Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any state securities lawsuch loss, damage, expense, liability, claim or any rule or regulation promulgated under the Securities Act or any state securities lawaction in respect thereof; provided, or any other law applicable to however, that the Company relating shall not be required to provide any indemnification pursuant to this Section 6(a) in any such registration or qualification, except case insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by loss, damage, expense, liability, claim or action arises out of or is based upon any such untrue statement or omission or alleged untrue statement or omission that is based upon of a material fact contained in, or omitted from, and in conformity with information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person the Initial Purchaser or a Holder to the Company expressly for use thereinin, any Shelf Registration Statement or any Prospectus; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understoodprovided further, however, that the Company shall not, in connection with such action or similar or related actions or proceedings arising out of the same general allegations or circumstances, this indemnity agreement will be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified Persons, liability which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees may otherwise have to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceedingIndemnified Party.
(b) Each Holder of Restricted Securities covered by any Registration Statement agreesHolder, severally and not jointly, agrees to indemnify indemnify, defend and hold harmless the Company and Company, its directors, officers officers, employees and any Person controlling (person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act) , the CompanyExchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to each of the indemnified Persons, but only (i“Holder Information”) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information, which material fact was not contained in such Holder Information, and (ii) which material fact was either required to be stated in any Shelf Registration Statement or Prospectus or necessary to make such Holder Information not misleading; and, subject to the extent of limitation set forth in the gross proceedsimmediately preceding clause, if anyeach Holder shall reimburse, received by such Purchaser from as incurred, the sale Company for any legal or other disposition of his or its Restricted Securities covered expenses reasonably incurred by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. 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, pursuant to the Shelf Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statementpursuant to either Section 6(a) or Section 6(b), such Holder person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the rights right to employ its own counsel in any such case, but the fees and duties given expenses of such counsel shall be at the Company expense of such Indemnified Party unless the employment of such counsel shall have been authorized in Section 2.7(awriting by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (except in which case such Indemnifying Party shall not have the right to direct that portion of the Holder defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of 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 required liable for the 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 assume such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the defense thereof)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 Company or its directors or officers or such controlling Person 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 counsel as contemplated by the rights second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and duties (iii) such Indemnified Party shall have given such Indemnifying Party at least thirty (30) days’ prior notice of its intention to each Holder settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement 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 Section 2.7(a)such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such Indemnified Party.
(cd) If the indemnification provided for in this Section 2.7 6 is unavailable to an indemnified party Indemnified Party under Section 2.7(a6(a) or (b) (other than by reason of exceptions provided in those Sections) Section 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expenses actions referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)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, judgments claims or expenses actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and by the Holder Holders or the Initial Purchaser, on the other hand hand, from sale the offering of Restricted Securities, the Registrable Securities or (ii) if such 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 Company Company, on the one hand, and such Holder of the Holders or the Initial Purchaser, on the other hand, in connection with the statements or omissions which resulted in such losses, claimsdamages, damagesexpenses, liabilities, judgments claims or expensesactions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of such Holder the Holders or the Initial Purchaser, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder the Holders or the Initial Purchaser and the parties parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid to or payable by a party as a result of the losses, claims, damages, liabilities judgments expenses, liabilities, claims and expenses actions referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. Proceeding.
(e) The Company Company, the Holders and each Holder of Restricted Securities covered by any Registration Statement the Initial Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 2.7(c) 6 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 does not take into account of the equitable considerations referred to in the immediately preceding paragraphSection 6(d) above. Notwithstanding the provisions of this Section 2.7(c)6, no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, contribute any amount in excess of the amount by which the dollar amount of proceeds received total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder upon were offered to the sale of the Restricted Securities public exceeds the amount of any damages which such Holder 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 misrepresentations 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. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 2.7 are 6 shall remain operative and in addition to full force and effect regardless of (i) any liability which termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnifying Person may otherwise have to Initial Purchaser or any person controlling any Holder or the indemnified Persons referred to aboveInitial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Incident to any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company agrees to will indemnify and hold harmless each Investor who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), and directors, officers, employees, representatives and agents of any of them (each, a "Selling Investor" and collectively, the "Selling Investors"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a "Controlling Person"), from and against any and all losses, claims, damages, expenses and liabilities, joint or several (including any investigation, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, as the same are incurred), to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) each Holder covered by any Registration Statementuntrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus) or (ii) each other Person who participates as an underwriter any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the offering statements in it not misleading or sale of such securities, (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law in connection with the offering covered by such registration statement; provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Investor or Controlling Person expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Selling Investor expressly for use in such registration statement, such Selling Investor will indemnify and hold harmless each Personunderwriter, if anythe Company (including its directors, officers, employees, representatives and agents), each other Selling Investor (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees, representatives and agents of any of them, and each person who controls (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, judgments or expenses, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims")several, to which such indemnified Person they, or any of them, may become subject under either Section 15 of the Securities Act or Section 20 of Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar as such Claims arise out of at common law or are based upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable otherwise to the Company relating to any such registration or qualification, except insofar as such losses, claims, damages, liabilities, judgments or expenses of any such indemnified Person; (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate same extent provided in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understoodimmediately preceding sentence; provided, however, that the Company shall not, indemnity agreement of such Selling Investor contained in connection with such action or similar or related actions or proceedings 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 (in addition to any local counselthis Section 6(a) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any apply to amounts paid in settlement of any such loss, claim, damage, liability or action or proceeding if such settlement is effected without the Company's prior written consentconsent of such Selling Investor, which consent shall not be withheld unreasonablyunreasonably withheld; provided further, and that in no event shall any indemnity by a Selling Investor under this Section 6(a) exceed the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity net proceeds from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, offering received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration StatementSelling Investor. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments expenses or expenses liabilities referred to therein, then each applicable indemnifying party (in the case of the Holders severally and not jointly)under this Section 6, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims claims, damages, liabilities, judgments expenses or expenses (i) liabilities in such proportion as is appropriate to reflect (i) the relative benefits received by the Company on Company, the one hand Selling Investors and the Holder on underwriters from the other hand from sale offering of Restricted Securities, or the Registrable Securities and (ii) if such 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 Company Company, the Selling Investors and such Holder the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Investors and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Investors and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Investors and of such Holder on the other underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Investors or by such Holder the underwriters and the parties parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; provided, that in no event shall any contribution by a Selling Investor hereunder exceed the net proceeds from the offering received by such Selling Investor. The amount paid by an indemnifying party or payable to a an indemnified party as a result of the losses, claims, damages, damages and liabilities judgments and expenses referred to above in this Section 6 shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a)above, any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim, payable as the same are incurred. The Company indemnification and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to provided for in this Section 2.7(c) were determined 6 will remain in full force and effect regardless of any investigation made by pro rata allocation (even if or on behalf of the Holders were treated as one entity for such purpose) indemnified parties or by any other method officer, director, employee, agent or controlling person of allocation which does not take into account the equitable considerations referred to in the immediately preceding paragraphindemnified parties. Notwithstanding the provisions of this Section 2.7(c), no Holder (and none of its related indemnified Persons) shall be required to contributeNo indemnifying party, in the aggregatedefense of any such claim or litigation, shall enter into a consent of entry of any amount in excess judgment or enter into a settlement without the consent of the amount by indemnified party, which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall consent will not be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution provisions contained in this Section 2.7 are in addition to any liability which the indemnifying Person may otherwise have to the indemnified Persons referred to aboveunreasonably withheld.
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