Indemnification; Contribution. (a) The Issuers agree, jointly and severally, to indemnify and hold harmless each Holder, its directors, officers and each person, if any, who controls any Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows: (i) against any and all loss, liability, claim, damage and related expense, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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; (ii) against any and all loss, liability, claim, damage and related expense, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below) any such settlement is effected with the prior written consent of the Issuers; and (iii) subject to Section 7(c) below, against reasonable expenses (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact. (b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, and each person, if any, who controls the Issuers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). (c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations. (e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. (f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. (g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission. (h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. (i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.
Appears in 5 contracts
Samples: Registration Rights Agreement (Foster Wheeler LTD), Registration Rights Agreement (Foster Wheeler Inc), Registration Rights Agreement (Foster Wheeler Inc)
Indemnification; Contribution. (a) The Co-Issuers agreeand the Guarantors agree to indemnify, jointly and severally, to indemnify and hold harmless the Initial Purchasers and each of their affiliates and any other Person under common control with the Initial Purchasers, each Holder, its directorseach Participating Broker-Dealer, officers each Person who participates as an underwriter (any such Person being an “Underwriter”) and each personPerson, if any, who controls any Holder or Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act (collectively the “Issuer Indemnitees”) as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment or supplement thereto)) pursuant to which Exchange Notes or Transfer Restricted Notes were registered under the 1933 Act, including all documents incorporated therein by reference, any Free Writing Prospectus used in violation of this Agreement or any “issuer information” (“Issuer Information”) filed or required to be filed pursuant to Rule 433(d) under the 1933 Act, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, ; provided that (subject to Section 7(c4(d) below) any such settlement is effected with the prior written consent of the IssuersCo-Issuers and the Guarantors; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or subparagraph for (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 concerning any Issuer Indemnitee furnished to the Co-Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder Issuer Indemnitee expressly for use in the a Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); and provided, further, that this the indemnity agreement contained in this subsection shall not apply inure to the benefit of any Issuer Indemnitee from whom the person asserting any such losses, claims, damages or liabilities purchased the Notes concerned, to the extent that a prospectus relating to such Notes was required to be delivered by such Issuer Indemnitee in connection with such purchase and any such loss, liability, claim, damage or expense (1) arising liability of such Issuer Indemnitee results from an offer the fact that there was not sent or sale of Registrable Securities occurring during a Deferral Periodgiven to such person, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation sale of salesuch Notes to such person, a copy of such prospectus if the most recent Prospectus Co-Issuers had previously furnished copies thereof to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material factIssuer Indemnitee.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration StatementEach Issuer Indemnitee, any preliminary prospectusseverally, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the Co-Issuers, the Guarantors, each Underwriter and the other selling Holders, and each personof their respective directors and officers, and each Person, if any, who controls the Issuers Co-Issuers, any Guarantor, any Underwriter or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 4(a) of this Sectionhereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in conformity with written information with respect to such Issuer Indemnitee furnished to the Co-Issuers and the Guarantors by or on behalf of such Holder or any person, if any, who controls any such Holder Issuer Indemnitee expressly for use in the Shelf Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, however, that no such Issuer Indemnitee shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Issuer Indemnitee from the sale of Transfer Restricted Notes pursuant to such Shelf Registration Statement.
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure so to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, shall assume the defense of such proceeding, including the employment of ) also be counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others party. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 4 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If the indemnification provided for in this Section 7 4, is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties Co-Issuers and the Guarantors, on the one hand hand, and of the indemnified party or parties Issuer Indemnitees, on the other hand hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Co-Issuers and the Guarantors on the one hand and the Holders Issuer Indemnitees on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Co-Issuers, the Guarantors or by the Holder Issuer Indemnitees and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Co-Issuers, the Guarantors and the Issuer Indemnitees agree that it would not be just and equitable if contribution pursuant to this Section 7 4 were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 74. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
. No Person guilty of fraudulent misrepresentation (gwithin the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 4, each Person, if any, who controls an Initial Purchaser or Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as such Initial Purchaser or Holder, and each director of any Co-Issuer or any Guarantor, and each Person, if any, who controls any Co-Issuer or any Guarantor within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Co-Issuers and the Guarantors. The Initial Purchasers’ respective obligations to contribute pursuant to this Section 4 are several in proportion to the principal amount of Notes set forth opposite their respective names in Schedule A to the Purchase Agreement and not joint. Notwithstanding the provisions of this Section 74, an indemnifying party that is in no event shall a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which all of the Registrable Securities Notes sold by such indemnifying party and distributed to the public were offered to the public Holder exceeds the amount of any damages that such indemnifying party Holder has otherwise been required to pay by reason under Section 4(b) hereof. The remedies provided for in this Section 4 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any indemnified party at law or in equity. The indemnity and contribution provisions contained in this Section 4 shall remain operative and in full force and effect regardless of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes any termination of this Section 7Agreement, each person, if any, who controls (ii) any Holder within the meaning of Section 15 investigation made by or on behalf of the Securities Act Issuer Indemnitees or Section 20 any Person controlling any Issuer Indemnitee, or by or on behalf of the Co-Issuers or the Guarantors or the officers or directors of or any Person controlling the Co-Issuers or the Guarantors, (iii) acceptance of any of the Exchange Act Notes and (iv) any sale of Transfer Restricted Notes pursuant to a Shelf Registration Statement; provided, however, that the indemnity and contribution rights provided for, in this Section 4 shall have not extend to any losses, liabilities or other damages arising out of actions occurring after the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning termination of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuersthis Agreement.
Appears in 4 contracts
Samples: Registration Rights Agreement (Safeway Stores 42, Inc.), Registration Rights Agreement (Safeway Stores 42, Inc.), Registration Rights Agreement (Albertsons Companies, Inc.)
Indemnification; Contribution. (a) The Issuers agreeCompany and the Guarantors, jointly and severally, agree to indemnify and hold harmless each Initial Purchaser, each Holder, its directorseach Participating Broker-Dealer, officers and each personPerson who participates as an underwriter (any such Person being an “Underwriter”), each Person, if any, who controls any Holder or Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act1934 Act and the respective Affiliates, directors, officers and employees of any of the foregoing as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment or supplement thereto)) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), ) or Issuer Free Writing Prospectus 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, ; provided that (subject to Section 7(c4(d) below) any such settlement is effected with the prior written consent of the IssuersCompany and the Guarantors; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company and the Guarantors by or on behalf of such Holder the Initial Purchasers, the Holder, Participating Broker-Dealer or any person, if any, who controls any such Holder Underwriter expressly for use in the a Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Each Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statementseverally, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the IssuersCompany, the Guarantors, the Initial Purchasers, each Underwriter and the other selling Holders, and each personof their respective Affiliates, directors, officers and employees, and each Person, if any, who controls the Issuers Company, the Guarantors, the Initial Purchasers, any Underwriter or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 4(a) of this Sectionhereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus in reliance upon and in conformity with written information with respect to such Holder furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Shelf Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto)) or any Issuer Free Writing Prospectus; provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure so to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, shall assume the defense of such proceeding, including the employment of ) also be counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others party. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 4 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties Company and the Guarantors on the one hand and of the indemnified party or parties Holders and the Initial Purchasers each on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company and the Guarantors on the one hand and the Holders and the Initial Purchasers each on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company and the Guarantors, the Holders or by the Holder Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company, the Guarantors, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 7 4 were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 74. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 74, an indemnifying party that is a selling Holder no Initial Purchaser shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities, Exchange Securities and Private Exchange Securities sold by such indemnifying party and distributed to the public it were offered to the public exceeds the amount of any damages that which such indemnifying party Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act0000 Xxx) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 74, each personPerson, if any, who controls any an Initial Purchaser or Holder within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as such Initial Purchaser or Holder, and each persondirector of the Company and such Guarantor, as the case may be, and each Person, if any, who controls the Issuers Company and such Guarantor, as the case may be, within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as the IssuersCompany. The Initial Purchasers’ respective obligations to contribute pursuant to this Section 4 are several in proportion to the principal amount of Securities set forth opposite their respective names in Schedule A to the Purchase Agreement and not joint.
Appears in 4 contracts
Samples: Registration Rights Agreement (Sonic Automotive Inc), Registration Rights Agreement (Sonic Automotive Inc), Registration Rights Agreement (Sonic Automotive Inc)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless each Holder, its directors, officers Holder and each personPerson, if any, who controls any Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Shelf Registration Statement (or any amendment thereto)) pursuant to which Registrable Securities were registered under the Securities Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the any 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below) any if such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any Holder), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall does not apply to any loss, liability, claim, damage damage, liability or expense to the extent arising it arises out of any an untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the a Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this . The foregoing indemnity agreement with respect to any untrue statement contained in or any omission from a preliminary prospectus shall not apply inure to the benefit of any Holder (or any Person controlling such Holder) from whom the Person asserting any such loss, liability, claim, damage or expense (1) arising from an offer or sale purchased any of Registrable the Securities occurring during a Deferral Period, after that are the Holder received a Deferral Notice, or (2) subject thereof if the Holder fails to deliver Company shall sustain the burden of proving that such Person was not sent or given a copy of the Prospectus (or the Prospectus as amended or supplemented) (in each case exclusive of the documents from which information is incorporated by reference) at or prior to the written confirmation of sale, the most recent sale of such Securities to such Person and the untrue statement contained in or the omission from such preliminary prospectus was corrected in the Prospectus furnished to it by (or the Issuers, Prospectus as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact).
(b) In connection with any Shelf Registration in which a Each Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, agrees to indemnify and hold harmless the IssuersCompany, its directors, officers and each personPerson, if any, who controls the Issuers Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 6(a) of this Sectionhereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give prompt notice to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify shall not relieve such an indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account under this indemnity agreement. An indemnifying party may participate at its own expense in the defense of this indemnitysuch action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, shall assume the defense of such proceeding, including the employment of ) also be counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others party. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such for all indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, parties in connection with any one action or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by separate but similar or related actions in the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party)jurisdiction, provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding the same general allegations or claim, 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 partycircumstances.
(d) If In order to provide for just and equitable contribution in circumstances in which the indemnification indemnity agreement provided for in this Section 7 6 is for any reason unavailable held to or insufficient to hold harmless an be unenforceable by the indemnified party parties although applicable in respect of any lossesaccordance with its terms, liabilities, claims, damages or expenses referred to therein, then each indemnifying party the Company and the Holders shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses of the nature contemplated by such indemnity agreement incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault Company and one or more of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such lossesHolders; provided, liabilitieshowever, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation.
. As between the Company and the Holders, such parties shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by such indemnity agreement in such proportion as shall be appropriate to reflect (i) the relative benefits received by the Company on the one hand and the Holders on the other hand, from the offering of the Exchange Securities or Registrable Securities included in such offering, and (ii) the relative fault of the Company on the one hand and the Holders on the other, with respect to the statements or omissions which resulted in such loss, liability, claim, damage or expense, or action in respect thereof, as well as any other relevant equitable considerations. The Company and the Holders of the Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 6 were to be determined by pro rata allocation or by any other method of allocation which does not take into account the relevant equitable considerations. For purposes of this Section 76, each personPerson, if any, who controls any a Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each persondirector of the Company, each officer of the Company who signed the Registration Statement, and each Person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersCompany.
Appears in 4 contracts
Samples: Registration Rights Agreement (CSC Holdings Inc), Registration Rights Agreement (CSC Holdings Inc), Registration Rights Agreement (Cablevision Systems Corp /Ny)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless each Initial Purchaser, each Holder, its directorseach Participating Broker-Dealer, officers each Person who participates as an underwriter (any such Person being an “Underwriter”) and each personPerson, if any, who controls any Holder or Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment or supplement thereto)) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), ) or “issuer free writing prospectus” as defined in Rule 433 under the 1933 Act (“Issuer Free Writing Prospectus”) 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, ; provided that (subject to Section 7(c4(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of such an Initial Purchaser, Holder or any person, if any, who controls any such Holder Underwriter expressly for use in the a Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Each Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statementseverally, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the IssuersCompany, the Guarantors, each Initial Purchaser, each Underwriter and the other selling Holders, and each personof their respective directors and officers, and each Person, if any, who controls the Issuers Company, the Guarantors, the Initial Purchasers, any Underwriter or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 4(a) of this Sectionhereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus in reliance upon and in conformity with written information with respect to such Holder furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Shelf Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto)) or any Issuer Free Writing Prospectus; provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure so to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, shall assume the defense of such proceeding, including the employment of ) also be counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others party. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 4 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties Company and the Guarantors on the one hand and of the indemnified party or parties Holders on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company and the Guarantors on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company, the Guarantors or by the Holder Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company, the Guarantors and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 7 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 does not take account of the equitable considerations referred to above in this Section 74. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 74, an indemnifying party that is a selling no Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Initial Securities sold by such indemnifying party and distributed to the public it were offered to the public exceeds the amount of any damages that which such indemnifying party Holder has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act0000 Xxx) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 74, each personPerson, if any, who controls any a Holder within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as such Holder, and each persondirector of the Company, and each Person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as the IssuersCompany.
Appears in 4 contracts
Samples: Registration Rights Agreement (Windstream Corp), Registration Rights Agreement (Windstream Corp), Registration Rights Agreement (Windstream Corp)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless each Holder, its directorseach Participating Broker-Dealer, officers each Person who participates as an underwriter (any such Person being an “Underwriter”) and each personPerson (a “Controlling Person”), if any, who controls any Holder (within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act0000 Xxx) any of the foregoing Persons, as follows:
(i) against any and all loss, liability, claim, damage damage, judgment, actions, other liabilities and related expenseexpense whatsoever (the “Liabilities”), as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment or supplement thereto)) pursuant to which Registrable Shares were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), ) or the omission or alleged omission therefrom at such date 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;
(ii) against any and all lossLiabilities, liability, claim, damage and related expenseas incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, ; provided that (subject to Section 7(c4(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense Liabilities to the 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 the Issuers Company by or on behalf of such the Holder or any person, if any, who controls any such Holder Underwriter expressly for use in the a Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Each Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statementseverally, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the IssuersCompany, each Underwriter and the other selling Holders, and each personof their respective officers, if anydirectors, who controls the Issuers within the meaning partners, employees, representatives and agents, and each of either Section 15 of the Securities Act or Section 20 of the Exchange Acttheir respective Controlling Persons, against any and all loss, liability, claim, damage and expense Liabilities described in the indemnity contained in subsection (aSection 4(a) of this Sectionhereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in conformity with written information with respect to such Holder furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Shares pursuant to such Registration Statement.
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure so to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, shall assume the defense of such proceeding, including the employment of ) also be counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others party. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever whosoever in respect of which indemnification or contribution could be sought under this Section 7 4 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses Liabilities referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses Liabilities incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties Company on the one hand and of the indemnified party or parties Holders on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expensesLiabilities, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 7 4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 74. The aggregate amount of losses, liabilities, claims, damages and expenses Liabilities incurred by an indemnified party and referred to above in this Section 7 4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act0000 Xxx) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 74, each personPerson, if any, who controls any a Holder within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as the IssuersHolder, and each director of the Company, and each Person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company.
Appears in 3 contracts
Samples: Registration Rights Agreement (ZAIS Financial Corp.), Registration Rights Agreement (ZAIS Financial Corp.), Registration Rights Agreement (ZAIS Financial Corp.)
Indemnification; Contribution. (a) The Issuers agreeCompany agrees to indemnify, jointly and severally, to indemnify defend and hold harmless each Frost Group Shareholder and PPS (each such person being referred to as a “Holder, its directors, officers ” for purposes of this Section 5) and each person, if any, person who controls any Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (each, as follows:
(i) a “Holder Indemnified Party”), from and against any and all loss, liabilitydamage, claim, damage and related expense, arising liability or claim (including the reasonable cost of investigation) which such Holder Indemnified Party may incur under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (any registration statement or prospectus or in any amendment thereto)or supplement thereto or in any preliminary prospectus, or the arises out of or is based upon any omission or alleged omission therefrom of to state a material fact required to be stated therein in any registration statement or in any amendment or supplement thereto or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising arises out of or is based upon any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of to state a material fact necessary in order to make the statements thereinmade 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;
(ii) against , except insofar as any and all such loss, liabilitydamage, claim, damage and related expense, to the extent liability or claim arises out of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever is based upon any such untrue statement or omission, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below) any such settlement is effected with the prior written consent of the Issuers; and
(iii) subject to Section 7(c) below, against reasonable expenses (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material factfact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Holder to the Company expressly for use therein, provided, however, that the Company shall not be required to provide any indemnify pursuant to this Section 5(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with written information pertaining to a Holder furnished by or on behalf of such Holder to the Company expressly for use in, any registration statement or any prospectus.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agreeEach Holder, severally and not jointly, agrees to indemnify indemnify, defend and hold harmless the IssuersCompany, its directors, officers and each person, if any, any person who controls the Issuers Company within the meaning of either 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 or claim (including the reasonable cost of investigation) which such Company Indemnified Party may incur under the Securities Act, against any and all the Exchange Act or otherwise, insofar as such loss, liabilitydamage, claimexpense, damage and expense described in the indemnity contained in subsection (a) liability or claim arises out of this Section, as incurred, but only with respect to or is based upon any untrue statements or omissions, statement or alleged untrue statements or omissions, made statement of a material fact contained in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers in writing by or on behalf of such Holder or any person, if any, who controls any such Holder to the Company expressly for use in the Registration Statement (any registration statement or any amendment thereto) or such preliminary prospectus or the 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 a material fact required to be stated in any 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. In no event shall the liability of any selling Holder of Covered Shares hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Covered Shares pursuant to the registration statement giving rise to such indemnification obligation.
(c) In case If any action, suit or proceeding (including any governmental investigationeach, a “Proceeding”) shall be instituted involving is brought against any person in respect of which indemnity may be sought pursuant to Section 7(aeither subsection (a) or 7(b(b) hereofof this Section 5, such person (the “indemnified partyIndemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying partyIndemnifying Party”) in writing, but failure to so notify shall not relieve writing of the institution of such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, Proceeding and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, Indemnifying Party shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceedingProceeding. In any such proceeding, any indemnified party Such Indemnified Party shall have the right to retain employ its own counselcounsel in any such case, but the fees and expenses of such counsel shall be at the expense of such indemnified party Indemnified Party unless (i) the indemnifying party and the indemnified party employment of such counsel shall have mutually agreed to been authorized in writing by such Indemnifying Party in connection with the retention defense of such counselProceeding 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 (ii) the named parties in conflict with those available to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them Indemnifying Party (in which case counsel designated by the indemnifying party such Indemnifying Party shall not represent have the indemnified party)right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, provided that, if but such Indemnifying Party may employ counsel and participate in the indemnifying party is obligated to pay defense thereof but the fees and expenses of such counsel for other indemnified parties, the indemnifying party shall be obligated to pay only at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses associated with one attorney or law firm shall be borne by such Indemnifying Party and paid as incurred (in addition to any local counsel) it being understood, however, that such Indemnifying Party shall not be liable for the indemnified parties, and all persons, if any, 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 control are parties to such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified partiesaction). The indemnifying party An Indemnifying Party shall not be liable for any settlement of any proceeding such Proceeding effected without its the written consent, which may not be unreasonably withheld or delayedconsent of such Indemnifying Party, but if settled with the written consent of such consent or if there be a final judgment for the plaintiffIndemnifying Party, the indemnifying party such Indemnifying Party agrees to indemnify the indemnified party and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement or judgmentof 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 (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No indemnifying party Indemnifying Party shall, without the prior written consent of each indemnified partyany Indemnified Party, settle or compromise or consent to the entry effect any settlement of any judgment with respect to any litigation, pending or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever threatened Proceeding in respect of which indemnification such Indemnified Party is or contribution could be have been a party and indemnity could have been sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto)hereunder by such Indemnified Party, unless such settlement, compromise or consent (I) settlement includes an unconditional release of each indemnified party such Indemnified Party from all liability arising out on claims that are the subject matter of such litigation, investigation, proceeding or claim, Proceeding and (II) does not include a statement as to or an admission of fault, culpability or a failure to act act, by or on behalf of any indemnified partysuch Indemnified Party.
(d) If the indemnification provided for in this Section 7 5 is for any reason unavailable to or insufficient to hold harmless an indemnified party Indemnified Party under subsections (a) and (b) of this Section 5 in respect of any losses, liabilitiesdamages, claimsexpenses, damages liabilities or expenses claims referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying party such Indemnified Party, shall contribute to the aggregate amount paid or payable by such Indemnified Party as a result of such losses, liabilitiesdamages, claimsexpenses, damages and expenses incurred by such indemnified party, as incurred, liabilities or claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders on the other hand from the offering of the Covered Shares or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party or parties Company on the one hand and of the indemnified party or parties Holders on the other hand in connection with the statements or omissions which resulted in such losses, liabilitiesdamages, expenses, liabilities or claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and of the Holders on the other hand shall be determined by reference to, among other things, whether any such the untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities and claims referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(fe) The parties hereto Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 7 5 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7subsection 0 above. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 75, an indemnifying party that is a selling no Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities Covered Shares sold by such indemnifying party and distributed to the public it were offered to the public exceeds the amount of any damages that such indemnifying party which it has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 5 are several in proportion to the respective amount of Covered Shares they have sold pursuant to a registration statement, and not joint. The remedies provided for in this Section 5 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 5 shall remain operative and in full force and effect regardless of (i) For purposes any termination of this Section 7Agreement, each person, if any, who controls (ii) any investigation made by or on behalf of any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such any person controlling any Holder, or the Company, or the Company’s officers or directors or any person controlling the Company and each person, if any, who controls (iii) the Issuers within the meaning sale of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuersany Covered Shares by any Holder.
Appears in 3 contracts
Samples: Registration Rights Agreement (Pharmaceutical Financial Syndicate, LLC), Registration Rights Agreement (Winston Pharmaceuticals, Inc.), Registration Rights Agreement (Winston Pharmaceuticals, Inc.)
Indemnification; Contribution. (a) The Issuers agreeCompany agrees to indemnify, jointly and severally, to indemnify defend and hold harmless each Initial Purchaser, each Holder, its directors, officers and each personperson (a "Controlling Person"), if any, who controls controls, is controlled by or is under common control with any Initial Purchaser or Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective Affiliates (including joint venture counterparts), as follows:
officers, directors, partners, employees, representatives and agents of any Initial Purchaser, the Holders or any Controlling Person (i) each, an "Indemnified Party"), from and against any and all loss, damage, expense, liability, claimclaim 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, damage and related the Exchange Act or otherwise, insofar as such loss, damage, expense, arising liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (Statement, Prospectus or Issuer Free Writing Prospectus, including any document incorporated by reference therein, or in any amendment thereto)or supplement thereto or in any preliminary prospectus, or the arises out of or is based upon any omission or alleged omission therefrom of to state a material fact required to be stated therein in any Registration Statement or in any amendment or supplement thereto or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising arises out of or is based upon any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of to state a material fact necessary in order to make the statements thereinmade in any Prospectus, Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading;
(ii) against , and the Company shall reimburse, as incurred, the Indemnified Parties for any and all legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim, damage and related expense, to the extent of the aggregate amount paid claim or action in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below) any such settlement is effected with the prior written consent of the Issuers; and
(iii) subject to Section 7(c) below, against reasonable expenses (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) aboverespect thereof; provided, however, that this indemnity agreement the Company shall not apply be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim, damage claim or expense to the extent arising action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material factfact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of an Initial Purchaser or a Holder to the Company expressly for use in, any Registration Statement, Prospectus or Issuer Free Writing Prospectus, including, without limitation, information provided to the Company by such Holder in a Notice and Questionnaire; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party; provided further, however, that no Initial Purchaser or Holder shall be entitled to this indemnity to the extent, and only to the extent, such loss, damage, expense, liability, claim or action arises out of a disposition, pursuant to a Registration Statement, of Registrable Securities by such Initial Purchaser or Holder, as the case may be, during a Suspension Period, provided such Initial Purchaser or Holder, as the case may be, received, prior to such disposition, a Suspension Notice with respect to such Suspension Period.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agreeEach Holder, severally and not jointly, agrees to indemnify indemnify, defend and hold harmless the IssuersCompany, its directors, officers, employees, representatives and each person, if any, agents and any person who controls the Issuers Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, a "Company Indemnified Party") from and against any and all loss, damage, expense, liability, claimclaim 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, damage and expense described in the indemnity contained in subsection Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (aA) of this Section, as incurred, but only with respect to any untrue statements or omissions, statement or alleged untrue statements or omissionsstatement of a material fact contained in, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information (the "Holder Information") furnished to the Issuers in writing by or on behalf of such Holder or any person, if any, who controls any such Holder to the Company expressly for use in the in, any Registration Statement (or Prospectus, or arises out of or is based upon any amendment thereto) omission or alleged omission to state a material fact in connection with such preliminary prospectus Holder Information, which material fact was not contained in such Holder Information, and which material fact was either required to be stated in any Registration Statement or the Prospectus (Prospectus, or any amendment or supplement thereto, or necessary to make such Holder Information not misleading; (B) a sale, by such Holder, pursuant to a 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 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 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 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 Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) In case If any action, suit or proceeding (including any governmental investigationeach, a "Proceeding") shall be instituted involving is brought against any person in respect of which indemnity may be sought pursuant to either Section 7(a6(a) or 7(b) hereofSection 6(b), such person (the “indemnified party”"Indemnified Party") shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”"Indemnifying Party") in writing, but failure to so notify shall not relieve writing of the institution of such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, Proceeding and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, Indemnifying Party shall assume the defense of such proceedingProceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party Indemnified Party and any others the indemnifying party may designate in such proceeding and shall pay the payment of all fees and disbursements of expense; provided, however, that the omission to so notify such counsel related Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such proceedingIndemnified Party or otherwise. In any such proceeding, any indemnified party Such Indemnified Party shall have the right to retain employ its own counselcounsel in any such case, but the fees and expenses of such counsel shall be at the expense of such indemnified party Indemnified Party unless (i) the indemnifying party and the indemnified party employment of such counsel shall have mutually agreed to been authorized in writing by such Indemnifying Party in connection with the retention defense of such counselProceeding or such Indemnifying Party shall not have, within a reasonable period of time in light of the circumstances, employed counsel to defend such Proceeding or (ii) the named parties such Indemnified Party shall have reasonably concluded that there may be one or more defenses available to any it that are different from, additional to or in conflict with those available to such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them Indemnifying Party (in which case counsel designated by the indemnifying party such Indemnifying Party shall not represent have the indemnified party)right to direct the defense of such Proceeding on behalf of the Indemnified Party, provided that, if the indemnifying party is obligated to pay the in any of which events such fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the fees and expenses associated with of more than one attorney separate counsel in any one Proceeding or law firm series of related Proceedings (in addition additional to any local counsel) for representing the indemnified parties, and all persons, if any, Indemnified Parties who control are parties to such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified partiesaction). The indemnifying party An Indemnifying Party shall not be liable for any settlement of any proceeding such Proceeding effected without its the written consent, which may not be unreasonably withheld or delayedconsent of such Indemnifying Party, but if settled with the written consent of such consent or if there be a final judgment for the plaintiffIndemnifying Party, the indemnifying party such Indemnifying Party agrees to indemnify the indemnified party and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement or judgmentof 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 (iii) such Indemnified Party shall have given such Indemnifying Party at least thirty (30) days' prior notice of its intention to settle. No indemnifying party Indemnifying Party shall, without the prior written consent of each indemnified partyany Indemnified Party, settle or compromise or consent to the entry effect any settlement of any judgment with respect to any litigation, pending or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever threatened Proceeding in respect of which indemnification such Indemnified Party is or contribution could be have been a party and indemnity could have been sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto)hereunder by such Indemnified Party, unless such settlement, compromise or consent (I) settlement includes an unconditional release of each indemnified party such Indemnified Party from all liability arising out on claims that are the subject matter of such litigation, investigation, proceeding or claim, Proceeding and (II) does not include a statement as to or an admission of fault, fault or culpability or a failure to act by or on behalf of any indemnified partysuch Indemnified Party.
(d) If the indemnification provided for in this Section 7 6 is for any reason unavailable to an Indemnified Party under Section 6(a) or Section 6(b), or insufficient to hold harmless an indemnified party such Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims, damages claims or expenses actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying party such Indemnified Party, shall contribute to the aggregate amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and by the Holders or the Initial Purchasers, on the other hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party or parties Company, on the one hand hand, and of the indemnified party Holders or parties the Initial Purchasers, on the other hand hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims, damages claims or expensesactions, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company, on the one hand hand, and of the Holders or the Initial Purchasers, on the other hand hand, shall be determined by reference to, among other things, whether any such the untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder Holders or the Initial Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(fe) The parties hereto Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 7 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(d) above. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling no Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by such indemnifying party and distributed to the public Holder were offered to the public exceeds the amount of any damages that such indemnifying party which it has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The 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 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 6 shall remain operative and in full force and effect regardless of (i) For purposes any termination of this Section 7Agreement, each person, if any, who controls (ii) any investigation made by or on behalf of any Holder within or the meaning Initial Purchasers or any person controlling any Holder or Initial Purchaser, or the Company, or the Company's officers or directors or any person controlling the Company and (iii) the sale of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such any Registrable Security by any Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.
Appears in 3 contracts
Samples: Registration Rights Agreement (Suntech Power Holdings Co., Ltd.), Registration Rights Agreement (Suntech Power Holdings Co., Ltd.), Registration Rights Agreement (LDK Solar Co., Ltd.)
Indemnification; Contribution. (a) Indemnification by the Company. The Issuers agree, jointly and severally, Company agrees to indemnify and ------------------------------ hold harmless each Holder, its directorsHolder and the beneficial owners, officers and directors and each personPerson, if any, who controls any each Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, arising as incurred, to which each Holder, or any beneficial owner, officer, director or controlling Person may become subject under the Securities Act or otherwise (A) that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading or arising (B) that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Shelf Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or any omission or alleged omission, provided that (subject to Section 7(c) below) any if such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to the limitations set forth in Section 7(c) below6(c), against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any 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 or alleged omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that the indemnity provided pursuant to this indemnity agreement Section 6(a) -------- ------- shall not apply with respect to any loss, liability, claim, damage or expense to the extent arising that arise out of or are based upon any untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such any Holder or any person, if any, who controls any such Holder (i) expressly for use in the Shelf Registration Statement (or any amendment thereto), or any preliminary prospectus or the Shelf Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, and each person, if any, who controls the Issuers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, thereto or (ii) the named parties pursuant to any such proceeding (including representation, warranty or other statement contained in the Contribution Agreement or any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent admission amendment to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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 partyPartnership Agreement.
(d) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.
Appears in 3 contracts
Samples: Registration Rights and Lock Up Agreement (Weeks Corp), Registration Rights and Lock Up Agreement (Weeks Corp), Registration Rights and Lock Up Agreement (Weeks Corp)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers Holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by the Initial Purchaser), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) to the 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 the Issuers Company by or on behalf of the Initial Purchaser, such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls the Initial Purchaser or any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage ) or expense (12) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received if a Deferral Notice, or (2) if the Holder fails to deliver at or Notice was timely given prior to the written confirmation of sale, the most recent Prospectus furnished such offer or sale to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material factNotice Holder in accordance with Section 8(b).
(b) In connection with any Shelf Registration in which a Holder Holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the Holders of Registrable Securities, and each person, if any, who controls the Company or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to unless such failure proximately results in the extent it is not materially prejudiced as a result thereof forfeiture of substantive rights and defenses and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnity agreement. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if the indemnifying party is obligated to pay be liable for (a) the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law separate firm (in addition to any local counsel) for the indemnified partiesInitial Purchaser, Holders of Registrable Securities, and all persons, if any, who control such indemnified party the Initial Purchaser or Holders of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict collectively, (b) the fees and expenses of interest or more than one separate firm (in addition to any local counsel) for the Company, and different defenses among each person, if any, who controls the indemnified partiesCompany within the meaning of either such Section, and that all fees and expenses payable under (a) and (b) above shall be reimbursed as they are incurred. In the case of any such separate firm for the Initial Purchaser, Holders of Registrable Securities, and control persons of the Initial Purchaser and Holders of Registrable Securities, such firm shall be designated in writing by the Initial Purchaser. In the case of any such separate firm for the Company, and control persons of the Company, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, but if settled with such consent or if there be a final non-appealable judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement. Notwithstanding the immediately preceding 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, an indemnifying party shall not be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its consent if such indemnifying party (1) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (2) provides written notice to the indemnified party substantiating the unpaid balance as unreasonable, in each case prior to the date of such settlement.
(e) If the indemnification provided for in to which an indemnified party is entitled under this Section 7 6 is for any reason unavailable to or insufficient although applicable in accordance with its terms to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, incurred (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder of the Registrable Securities or the Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling neither any Holder of any Registrable Securities nor the Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party Holder of Registrable Securities or by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party Holder of Registrable Securities or the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such Holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (Tarragon Corp), Registration Rights Agreement (Tarragon Corp)
Indemnification; Contribution. (a) Indemnification by the Company. The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless each Holder, its directorseach officer and director of such Holder, officers and each personPerson, if any, who controls any Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment thereto)) pursuant to which Registrable Securities were registered under the Securities Act, or the omission or alleged omission therefrom of a material fact required to be stated including all documents incorporated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto)by reference, 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below) any if such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any 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 the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that the indemnity provided pursuant to this indemnity agreement shall Section 5(a) does not apply to any Holder with respect to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, and each person, if any, who controls the Issuers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the any Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.
Appears in 2 contracts
Samples: Merger Agreement (Equity Residential Properties Trust), Merger Agreement (Equity Residential Properties Trust)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless Xxxxxxx Xxxxx and each Holder, its directors, officers Holder of Registrable Securities and each person, if any, who controls Xxxxxxx Xxxxx or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, arising out of as incurred, resulting from any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of resulting from any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c6(c) below, against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of such Holder Xxxxxxx Xxxxx or any Holder of Registrable Securities and each person, if any, who controls Xxxxxxx Xxxxx or any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the if a Notice Holder received was given a Deferral Notice, or (2) if the a Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement of a material fact or omission would have included the omitted or allegedly omitted statement of a material fact.
(b) In connection with any Shelf Registration in which a Holder Holder, including, without limitation, Xxxxxxx Xxxxx, of Registrable Securities is participating participating, in and furnishing information relating to such Holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Xxxxxxx Xxxxx and each person, if any, who controls the Issuers Xxxxxxx Xxxxx within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). Xxxxxxx Xxxxx agrees to indemnify and hold harmless the Company, the Holders of Registrable Securities, and each person, if any, who controls the Company or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by or on behalf of Xxxxxxx Xxxxx expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnity agreement. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if the indemnifying party is obligated to pay be liable for (a) the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law separate firm (in addition to any local counsel) for the indemnified partiesXxxxxxx Xxxxx, Holders of Registrable Securities, and all persons, if any, who control such indemnified party Xxxxxxx Xxxxx or Holders of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict collectively (b) the fees and expenses of interest or more than one separate firm (in addition to any local counsel) for the Company, its directors, and different defenses among each person, if any, who controls the indemnified partiesCompany within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for Xxxxxxx Xxxxx, Holders of Registrable Securities, and control persons of Xxxxxxx Xxxxx and Holders of Registrable Securities, such firm shall be designated in writing by Xxxxxxx Xxxxx. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability 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 the second and third sentences of this paragraph, the 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 forty-five (45) days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least thirty (30) days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. Notwithstanding the immediately preceding 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, an indemnifying party shall not be liable for any settlement effected without its consent if such indemnifying party (i) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (ii) provides written notice to the indemnified party substantiating the unpaid balance as unreasonable, in each case prior to the date of such settlement. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than forty-five (45) days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least thirty (30) days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement. Notwithstanding the immediately preceding 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, an indemnifying party shall not be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its consent if such indemnifying party (1) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (2) provides written notice to the indemnified party substantiating the unpaid balance as unreasonable, in each case prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders of the Registrable Securities or Xxxxxxx Xxxxx on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder Holders of the Registrable Securities or Xxxxxxx Xxxxx and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling neither the Holder of any Registrable Securities nor Xxxxxxx Xxxxx, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party Holder of Registrable Securities or by Xxxxxxx Xxxxx, as the case may be, and distributed sold to the public were offered to the public institutional investors exceeds the amount of any damages that such indemnifying party Holder of Registrable Securities or Xxxxxxx Xxxxx has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls Xxxxxxx Xxxxx or any Holder of Registrable Securities within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as Xxxxxxx Xxxxx or such Holder, and each person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersCompany.
Appears in 2 contracts
Samples: Registration Rights Agreement (Affiliated Managers Group Inc), Registration Rights Agreement (Affiliated Managers Group Inc)
Indemnification; Contribution. (a) The Issuers agree, jointly Company and severally, the Guarantors severally agree to indemnify and hold harmless each Holder, Holder and its directors, officers officers, employees, members, representatives and agents and each person, if any, who controls any Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, as follows:
a "HOLDER INDEMNIFIED PARTY"), from and against (i) against any and all loss, liabilitydamage, claim, damage and related expense, arising liability or claim (including the reasonable cost of investigation) which such Holder Indemnified Party may incur under the Securities Act, the Exchange Act or otherwise, as incurred, insofar as such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in the any Shelf Registration Statement (or Prospectus or in any amendment thereto)or supplement thereto or in any preliminary prospectus, or the arises out of or is based upon any omission or alleged omission therefrom of to state a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising arises out of or is based upon any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of to state a material fact necessary in order to make the statements thereinmade in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading;
, except insofar as any such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information required to be included in any Shelf Registration Statement or the related Prospectus pursuant the Securities Act furnished in writing by or on behalf of any Holder to the Company, (ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, ; provided that (subject to Section 7(c) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
and (iii) subject to Section 7(c) belowany and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that as to any preliminary prospectus, this indemnity agreement shall not apply inure to the benefit of any Holder Indemnified Party on account of any loss, liability, claim, damage damage, liability or expense action arising from the sale of the Registrable Securities sold pursuant to the extent arising out Shelf Registration Statement to any person by such Holder Indemnified Party if (i) that Holder Indemnified Party failed to send or give a copy of any the Prospectus, as the same may be amended or supplemented, to that person within the time required by the Securities Act (other than as a result of a failure by the Company to timely deliver copies of the Prospectus to such Holder Indemnified Party) and (ii) the untrue statement or alleged untrue statement of a material fact or omission or alleged untrue statement omission to state a material fact in such preliminary prospectus was corrected in the Prospectus or omission made a supplement or amendment thereto, as the case may be. This indemnity agreement will be in reliance upon and in conformity with written information furnished addition to any liability that the Issuers by or on behalf of such Holder Company or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material factGuarantor may otherwise have.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agreeEach Holder, severally and not jointly, agrees to indemnify indemnify, defend and hold harmless the IssuersCompany and the Guarantors, and their directors, officers, employees, members, representatives and agents and each person, if any, who controls the Issuers Company or any Guarantor within the meaning of either 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 or claim (including the reasonable cost of investigation) which such Company Indemnified Party may incur under the Securities Act, against any and all the Exchange Act or otherwise, insofar as such loss, liabilitydamage, claimexpense, damage and expense described in the indemnity contained in subsection (a) liability or claim arises out of this Section, as incurred, but only with respect to or is based upon any untrue statements or omissions, statement or alleged untrue statements or omissions, made statement of a material fact contained in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers in writing by or on behalf of such Holder or to the Company required to be included in any person, if any, who controls any such Holder expressly for use in the Shelf Registration Statement (or any amendment thereto) or such preliminary prospectus or the related Prospectus (pursuant the Securities Act, 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)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; provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) In case If any action, suit or proceeding (including any governmental investigationeach, a "PROCEEDING") shall be instituted involving is brought against any person in respect of which indemnity may be sought pursuant to Section 7(aeither subsection (a) or 7(b(b) hereofof this Section 6, such person (the “indemnified party”"INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”"INDEMNIFYING PARTY") in writingwriting of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding with counsel reasonably satisfactory to the Indemnified Party and shall pay the fees and expenses of such counsel; provided, but however, that failure to so notify the Indemnifying Party shall not relieve such indemnifying party Indemnifying Party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may otherwise have otherwise than on account of this indemnity, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceedingindemnity agreement. In any such proceeding, any indemnified party Such Indemnified Party shall have the right to retain employ its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party Indemnified Party unless (i) the indemnifying party Indemnified Party is a Holder of Notes representing not less than 33% of the aggregate principal amount of the then outstanding Notes, (ii) the Indemnifying Party and the indemnified party Indemnified Party shall have mutually agreed to the retention contrary, (iii) the Indemnifying Party has failed within a reasonable time after receipt of such counsel, notice to assume defense of a Proceeding to retain counsel reasonably satisfactory to the Indemnified Party or (iiiv) the named parties to in any such proceeding Proceeding (including any impleaded parties) include both the indemnifying party Indemnifying Party and the indemnified party Indemnified Party, the Indemnifying Party proposes to have the same counsel represent it and the Indemnified Party, and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (them. It is understood that the Indemnifying Party may, in which case counsel designated by connection with any Proceeding or related Proceeding in the indemnifying party shall not represent the indemnified party)same jurisdiction, provided that, if the indemnifying party is obligated to pay be liable for the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law separate firm (in addition to any local counsel) for all Indemnified Parties in accordance with the indemnified partiesforegoing sentence, and that all persons, if any, who control such indemnified party within fees and expenses actually incurred shall be promptly reimbursed as incurred upon delivery to the meaning Indemnifying Party of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified partiesreasonable documentation therefor setting forth such expenses in reasonable detail. The indemnifying party Indemnifying Party shall not be liable for any settlement of any proceeding Proceeding effected without its written consent, which may not be unreasonably withheld or delayed, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party Indemnifying Party agrees to indemnify the indemnified party and hold harmless any Indemnified Party from and against any loss or liability by reason of such settlement or judgment. No Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested the Indemnifying Party to reimburse the Indemnified Party as contemplated by this paragraph, the Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its consent if (i) such settlement is entered into more than 60 Business Days after receipt by the Indemnifying Party of the aforesaid request, (ii) such indemnifying party shall not have reimbursed the Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days' prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of each indemnified partythe Indemnified Party, settle or compromise or consent to the entry effect any settlement of any judgment with respect to any litigation, pending or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever threatened Proceeding in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party any Indemnified Party is an actual or potential party thereto)a party, unless such settlement, compromise or consent (I) settlement includes an unconditional release of each indemnified party such Indemnified Party from all liability arising out on claims that are the subject matter of such litigation, investigation, proceeding or claim, Proceeding and (II) does not include a statement as to or an without admission of fault, culpability or a failure to act fault by or on behalf of any indemnified partythe Indemnified Party.
(d) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, liabilitiesdamages, claimsexpenses, damages liabilities or expenses claims referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying party such Indemnified Party, shall contribute to the aggregate amount paid or payable by such Indemnified Party as a result of such losses, liabilitiesdamages, expenses, liabilities or claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party or parties Company on the one hand and of the indemnified party or parties Holders on the other hand in connection with the statements or omissions which resulted in such losses, liabilitiesdamages, expenses, liabilities or claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling neither any of the Purchasers nor any Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to Holder or Purchaser, as the public were offered to the public case may be, exceeds the amount of any damages that such indemnifying party Holder or Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission. The relative fault of the Company on the one hand and of 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 omission or alleged omission relates to information supplied by the Company or by the Holders and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities and claims referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(he) The Company, the Guarantors and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The 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 6 shall remain operative and in full force and effect regardless of (i) For purposes any termination of this Section 7Agreement, each person, if any, who controls (ii) any investigation made by or on behalf of any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such any person controlling any Holder, or the Company or Guarantors, or the Company's or any Guarantor's officers or directors or any person controlling the Company or any Guarantor and each person, if any, who controls (iii) the Issuers within sale of any Registrable Security by any Holder.
(g) Section 6 of this Agreement may not be amended except by an instrument in writing signed by the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersIndemnified Party affected hereto.
Appears in 2 contracts
Samples: Purchase Agreement (Integrated Electrical Services Inc), Registration Rights Agreement (Integrated Electrical Services Inc)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by the Initial Purchaser), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; providedPROVIDED, howeverHOWEVER, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf the Initial Purchaser, such holder of such Holder Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls the Initial Purchaser or any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received if a Deferral NoticeNotice was given to such Notice Holder in accordance with Section 8(b), or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and each person, if any, who controls the Company or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnity agreement. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if the indemnifying party is obligated to pay be liable for (a) the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law separate firm (in addition to any local counsel) ), whose fees must be reasonable, for the indemnified partiesInitial Purchaser, Holders of Registrable Securities, and all persons, if any, who control such indemnified party the Initial Purchaser or Holders of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict collectively (b) the fees and expenses of interest or more than one separate firm (in addition to any local counsel), whose fees must be reasonable, for the Company, and different defenses among each person, if any, who controls the indemnified partiesCompany within the meaning of either such Section, and that all fees and expenses payable under (a) and (b) above shall be reimbursed as they are incurred. In the case of any such separate firm for the Initial Purchaser, Holders of Registrable Securities, and control persons of the Initial Purchaser and Holders of Registrable Securities, such firm shall be designated in writing by the Initial Purchaser. In the case of any such separate firm for the Company, and control persons of the Company, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, but if settled with such consent or if there be a final non-appealable judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement. Notwithstanding the immediately preceding 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, an indemnifying party shall not be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its consent if such indemnifying party (1) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (2) provides written notice to the indemnified party substantiating the unpaid balance as unreasonable, in each case prior to the date of such settlement.
(e) If the indemnification provided for in to which an indemnified party is entitled under this Section 7 6 is for any reason unavailable to or insufficient although applicable in accordance with its terms to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, incurred (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party holder of Registrable Securities or by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party holder of Registrable Securities or the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (Carnival Corp), Registration Rights Agreement (Carnival Corp)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to ----------------------------- indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c6(c) below, against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, -------- ------- liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of the Initial Purchaser, such Holder holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls the Initial Purchaser or any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the if Notice Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and each person, if any, who controls the Company or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnity agreement. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if the indemnifying party is obligated to pay be liable for (a) the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law separate firm (in addition to any local counsel) for the indemnified partiesInitial Purchaser, Holders of Registrable Securities, and all persons, if any, who control such indemnified party the Initial Purchaser or Holders of Registrable Securities within the meaning of either Section 15 of the Securities 1933 Act or Section 20 Xxxxxxx 00 xx xxx 0000 Xxx, (x) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, and each person, if any, who controls the Company within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Initial Purchaser, Holders of Registrable Securities, and control persons of the Exchange ActInitial Purchaser and Holders of Registrable Securities, unless there exists a conflict such firm shall be designated in writing by the Initial Purchaser. In the case of interest or any such separate firm for the Company, and different defenses among such directors, officers and control persons of the indemnified partiesCompany, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability 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 the second and third sentences of this paragraph, the 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 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party holder of Registrable Securities or by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party holder of Registrable Securities or the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (Tyco International LTD /Ber/), Registration Rights Agreement (Tyco International LTD /Ber/)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, to Company will indemnify and hold harmless each Holderthe Agent and its affiliates, its and their respective past, present and future directors, officers officers, employees, agents and each person, if any, who controls any Holder controlling persons within the meaning of either Section 15 of the Securities Act or Section 20 the Exchange Act (collectively, “Indemnified Persons”), from and against any losses, claims, damages, expenses or liabilities whatsoever, joint or several, to which they or any of them may become subject (collectively, “Losses”), under the Securities Act, the Exchange Act, applicable state law or otherwise, insofar as follows:
such Losses (or proceedings or actions in respect thereof) arise out of or are based upon (i) against any and all loss, liability, claim, damage and related expense, arising out of any an untrue statement or alleged untrue statement of a material fact contained (A) in the Registration Statement (Statement, the Prospectus or any amendment theretoindividual Issuer-Represented Free Writing Prospectus (collectively, the “Offering Materials”), (B) any blue sky application, or other instrument or document of the Company or based upon written information supplied by the Company filed in any state or jurisdiction to register or qualify any or all of the Securities under the securities laws thereof, or to perfect any exemption from any such registration or qualification (collectively, the “Blue Sky Applications”), or (C) sales information or other document, advertisement, or communication prepared, made or executed by or on behalf of the Company with its consent or based upon written information furnished by or on behalf of the Company, whether or not filed in any jurisdiction, in order to qualify or register the Securities under the securities laws thereof (“Sales Information”) including for the foregoing (A) through (C) any amendment or supplement thereto, (ii) the omission or alleged omission therefrom of to state in any Offering Materials, Blue Sky Applications or Sales Information, or any amendments or supplements thereto, a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light or (iii) from any theory of the circumstances under which they were made, not misleading liability whatsoever relating to or arising from the Offering, the Offering Materials, the Blue Sky Applications, the Sales Information or other documents or materials distributed in connection with the Offering; provided, however, that the Company will not be liable in any such case to the extent that any such Losses (1) arise out of any or are based upon an untrue statement or alleged untrue statement of a material fact included or omission or alleged omission made in any preliminary prospectus Offering Materials or the Prospectus (Blue Sky Applications, 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;
(ii) against any and all loss, liability, claim, damage and related expense, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below) any such settlement is effected with the prior written consent of the Issuers; and
(iii) subject to Section 7(c) below, against reasonable expenses (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder the Agent expressly for use therein, provided, however, that for purposes of this Agreement, the Company and the Agent hereby acknowledge and agree that the only information that the Agent has furnished to the Company specifically for inclusion in the Registration Statement (Prospectus or any amendment theretoOffering Materials or Blue Sky Applications is the information in eighth paragraph under the caption “Plan of Distribution” in the Prospectus, statements describing Xxxxx in the fourth paragraph under the caption “Plan of Distribution” in the Prospectus and the statements relating to the fact that the Xxxxx is a broker-dealer registered with FINRA (the “Xxxxx Information”), or (2) are found in a final non-appealable judgment by a court of competent jurisdiction to have resulted solely from Xxxxx’x xxxxx negligence, bad faith or willful misconduct in performing its services under this Agreement. The Company will promptly reimburse the Agent and each Indemnified Person upon written demand for any preliminary prospectus reasonable expenses (including fees and disbursements of counsel) incurred by the Agent or any Indemnified Persons in connection with investigating, preparing or defending any actions, proceedings or claims for which indemnification may be sought hereunder as such expenses are incurred.
(b) The Agent will indemnify and hold harmless the Company and its affiliates, and their respective past, present and future directors, officers, employees, agents and controlling persons within the meaning of the Securities Act or the Prospectus Exchange Act against any Losses to which the Company may become subject, under the Securities Act or otherwise, insofar as such Losses (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Offering Materials or Blue Sky Applications, or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, and each person, if any, who controls the Issuers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder the Agent expressly for use therein; provided, however, that for purposes of this Agreement, the Company and the Agent hereby acknowledge and agree that the only information that the Agent has furnished to the Company specifically for inclusion in the Registration Statement (Prospectus or any amendment thereto) Offering Materials or such preliminary prospectus Blue Sky Applications is the Xxxxx Information. The Agent will promptly reimburse the Company and its affiliates, and their respective past, present and future directors, officers, employees, agents and controlling persons within the meaning of the Securities Act or the Prospectus Exchange Act upon written demand for any reasonable expenses (including fees and disbursements of counsel) in connection with investigating, preparing or defending any amendment actions, proceedings or supplement thereto)claims for which indemnification may be sought hereunder as such expenses are incurred.
(c) In case Promptly after receipt by an indemnified party under Section 6(a) or 6(b) of notice of the commencement of any proceeding action, proceeding, suit or claim (including any governmental investigation) shall be instituted involving any person whether commenced or threatened), such indemnified party will, if a claim in respect of which indemnity may thereof is to be sought pursuant to Section 7(a) or 7(b) hereofmade against the indemnifying party under such subsection, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) party in writingwriting thereof, but the failure to so notify shall not relieve such the indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall will not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying to any indemnified party under such subsection or otherwise. In case any such action is brought against any indemnified party, if the indemnifying party so electswill be entitled to participate therein and, mayto the extent that it desires, or upon request jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who will not, except with the consent of the indemnified party, shall be counsel to the indemnifying party). After notice from the indemnifying party to such indemnified party of its election to so assume the defense of such proceedingthereof, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related will not be liable to such proceeding. In any such proceeding, any indemnified party 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 In no event shall have the right to retain its own counsel, but indemnifying parties be liable for the fees and expenses of such counsel shall be at the expense more than one separate firm of such attorneys (unless an indemnified party unless (i) the indemnifying party and the indemnified party or parties shall have mutually agreed reasonably concluded that there may be defenses available to the retention it or them which are different from or in addition to those of such counsel, or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for all indemnified parties in connection with any one action, proceeding or claim or separate but similar or related actions, proceedings or claims in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shallwill, without the prior written consent of each the indemnified party, settle effect the settlement or compromise of, or consent to the entry of any judgment with respect to to, any litigation, pending or any investigation threatened action or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could may be sought under this Section 7 hereunder (whether or not each the indemnified party is an actual or potential party theretoto such action or claim), and unless the indemnified party agrees in writing otherwise, any such settlement, compromise or consent judgment must (Ii) includes include an unconditional release of each the indemnified party from all liability arising out of such litigation, investigation, proceeding action or claim, and (IIii) does not include a statement as to or an admission of fault, culpability or a failure to act act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, liabilitiesclaims, damages or liabilities (or actions in respect thereof) referred to therein, then the Agent, on the one hand, and the Company, on the other hand, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of benefits received by the indemnifying party or parties Company on the one hand and of the indemnified party or parties Agent on the other from the Offering of the Securities, but after deducting any contribution received by the Company or the Agent from third parties who may also be liable for contribution. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Agent on the other in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expensesliabilities (or actions in respect thereof), as well as any other relevant equitable considerations.
(e) . The relative fault of benefits received by the Issuers Company on the one hand and the Holders Agent on the other hand shall be deemed to be in the same proportion as the total net proceeds from the Offering (after deducting the fees payable to the Agent but before deducting other expenses) received by the Company bear to the total fees received by the Agent under Section 2 of this Agreement. The relative fault shall be determined by reference to, among other things, whether any such 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 Issuers Company on the one hand or by the Holder Agent on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company and the Agent agree that it would not be just and equitable if contribution contributions pursuant to this Section 7 subsection (d) were determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section 7subsection (d). The aggregate amount paid or payable by an indemnified party as a result of the losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities (or actions in respect thereof) referred to above in this Section 7 subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue action or alleged untrue statement or omission or alleged omission.
(g) claim. Notwithstanding the provisions of this Section 7subsection (d), an indemnifying party that is a selling Holder the Agent shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed paid (excluding reimbursable expenses) to the public were offered Agent under this Agreement. It is understood and agreed that the above-stated limitation on the Agent’s liability is essential to the public exceeds Agent and that the amount of any damages that Agent would not have entered into this Agreement if such indemnifying party has otherwise limitation had not been required agreed to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) the parties to this Agreement. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(ie) For purposes The obligations of the Company under this Section 76 are in addition to any liability which the Company may otherwise have and extend, upon the same terms and conditions, to each person, if any, who controls any Holder (within the meaning of Section 15 the Securities Act) the Agent, or any of the Securities Act or Section 20 respective partners, directors, officers and employees of the Exchange Act Agent or any such controlling person. The obligations of the Agent under this Section 6 shall be in addition to any liability that the Agent may otherwise have and extend, upon the same rights terms and conditions, to contribution as such Holdereach director of the Company, each officer of the Company and to each person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersAct.
Appears in 2 contracts
Samples: Agency Agreement (Jacksonville Bancorp Inc /Fl/), Agency Agreement (Jacksonville Bancorp Inc /Fl/)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchasers and each Holder, its directors, officers Holder and each person, if any, who controls the Initial Purchasers or any Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by the Initial Purchasers or on behalf of such Holder or any (which also acknowledges the indemnity provisions herein) and each person, if any, who controls the Initial Purchasers or any such Holder expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, and provided further that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after amounts payable by the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior Company to the written confirmation Initial Purchasers or the Holders shall be net of sale, the most recent Prospectus furnished to it any insurance proceeds actually recovered by the Issuers, as amended Initial Purchasers or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material factthe Holders in connection therewith.
(b) In connection with any Shelf Registration in which a Holder Holder, including, without limitation, the Initial Purchasers, is participating participating, in and furnishing information relating to such Holder to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the such Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchasers and each person, if any, who controls the Issuers Initial Purchasers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). Each of the Initial Purchasers agrees to indemnify and hold harmless the Company, the Holders, and each person, if any, who controls the Company or any Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Initial Purchasers expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingaction; provided, any indemnified party shall have the right however, that counsel to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent (except with the consent of the indemnified party), provided that, if ) also be counsel to the indemnified party. In no event shall the indemnifying party is obligated to pay the parties be liable for fees and expenses of more than one counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. Counsel for the indemnified parties, and all persons, if any, who control such indemnified party within shall be legal counsel acceptable to the meaning of either Section 15 of indemnifying party; provided that the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for unreasonably object to the legal counsel selected by the indemnified party. With respect to any settlement of any proceeding effected without its written consentaction commenced, which may the parties hereto agree that it shall not be unreasonably withheld or delayed, but deemed to be an "unreasonable objection" if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees objects to indemnify the choice of legal counsel selected by the indemnified party from and against if such legal counsel is unable, for any loss or liability reason, to also act as legal counsel to the indemnifying party; provided that the indemnifying party shall not raise such objection with respect to more than two legal counsels selected by reason of such settlement or judgmentthe indemnified party. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder Holder, including without limitation the Initial Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the Holders nor the Initial Purchasers, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party Holder or underwritten by the Initial Purchasers, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party Holder or the Initial Purchasers has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchasers or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Initial Purchasers or such Holderholder, and each person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersCompany.
Appears in 1 contract
Samples: Registration Rights Agreement (Regeneron Pharmaceuticals Inc)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless each HolderInitial Purchaser, its directorseach Holder who has provided information to the Company in accordance with Section 2.1(c), officers each Person who participates as an underwriter (any such Person being an “Underwriter”) and each personPerson, if any, who controls any such Holder or Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Shelf Registration Statement (or any amendment or supplement thereto)) pursuant to which Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), ) or any Issuer Free Writing 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, ; provided that (subject to Section 7(c4(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all reasonable out-of-pocket expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of such any Holder or any person, if any, who controls any such Holder Underwriter expressly for use in the a Shelf Registration Statement (or any amendment thereto), any Prospectus (or any preliminary prospectus amendment or the supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement thereto); provided.
(b) Each Holder who has provided information to the Company in accordance with Section 2.1(c), furtherseverally, that this indemnity agreement shall but not apply jointly, agrees to indemnify and hold harmless the Company, each Initial Purchaser, each Underwriter and the other selling Holders who have provided information to the Company in accordance with Section 2.1(c), and each of their respective directors and officers, and each Person, if any, who controls the Company, any Initial Purchaser, any Underwriter or any other selling Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage or and expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after described in the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuersindemnity contained in Section 4(a), as amended incurred, but only with respect to untrue statements or supplementedomissions, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement statements or omission of a material fact.
(b) In connection with any omissions, made in the Shelf Registration Statement (or any amendment thereto) or any Prospectus included therein (or any amendment or supplement thereto) in which a Holder is participating reliance upon and in and furnishing conformity with written information relating with respect to such Holder furnished to the Issuers in writing Company by or on behalf of such Holder expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, (or any amendment thereto) or such Prospectus (or any amendment or supplement thereto);
(c) The Initial Purchasers agree to indemnify and hold harmless the IssuersCompany, the Holders of Registrable Securities, and each person, if any, who controls the Issuers Company or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder the Initial Purchasers expressly for use in the Shelf Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(cd) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, shall assume the defense of such proceeding, including the employment of ) also be counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others party. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 4 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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.
(de) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii) effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 45 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement, provided that an indemnifying party shall not be liable for any such settlement effected without its consent if such indemnifying party (1) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (2) provides written notice to the indemnified party describing any unpaid balance it believes is unreasonable and the reasons therefor, in each case prior to the date of such settlement.
(f) If the indemnification provided for in this Section 7 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties Company on the one hand and of the indemnified party or parties Holders and the Initial Purchasers on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders and the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company, or by the Holder Holders or the Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 7 4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 74. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 4 shall be deemed to include any reasonable out-of-pocket legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 74, an indemnifying party that is a selling no Initial Purchaser or Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public Initial Purchaser or Holder exceeds the amount of any damages that which such indemnifying party Initial Purchaser or Holder has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act0000 Xxx) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 74, each personPerson, if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as such Initial Purchaser or Holder, and each persondirector of the Company, and each Person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as the IssuersCompany.
Appears in 1 contract
Indemnification; Contribution. (a) Indemnification by the Company. The Issuers agree, jointly and severally, Company agrees to indemnify and ------------------------------ hold harmless each Holder, its directorsHolder and the beneficial owners, officers and directors and each personPerson, if any, who controls any Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, arising as incurred, to which Holder, or any beneficial owner, officer, director or controlling Person may become subject under the Securities Act or otherwise (A) that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading or arising (B) that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Shelf Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or any omission or alleged omission, provided that (subject to Section 7(c) below) any if such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to the limitations set forth in Section 7(c) below6(c), against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any 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 or alleged omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that the indemnity provided pursuant to this indemnity agreement Section 6(a) -------- ------- shall not apply with respect to any loss, liability, claim, damage or expense to the extent arising that arise out of or are based upon any untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder (i) expressly for use in the Shelf Registration Statement (or any amendment thereto), or any preliminary prospectus or the Shelf Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, and each person, if any, who controls the Issuers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, thereto or (ii) the named parties pursuant to any such proceeding (including representation, warranty or other statement contained in the Contribution Agreement or any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent admission amendment to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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 partyPartnership Agreement.
(d) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.
Appears in 1 contract
Samples: Registration Rights and Lock Up Agreement (Weeks Corp)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless each HolderTCI, its directors, officers any other Holder and each person, if any, who controls TCI or any other Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, Act as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or the any 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c9(c) below, against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of TCI or such Holder or any person, if any, who controls any such other Holder expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the any Prospectus (or any amendment or supplement thereto); provided, further, provided further that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after if the indemnified party is a Notice Holder that received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact. This indemnity agreement will be in addition to any liability that the Company may otherwise have.
(b) In connection with any Shelf Registration Statement in which a Holder is participating in and furnishing information relating to such Holder to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, TCI agrees to indemnify and hold harmless the IssuersCompany, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Issuers Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingaction; provided, any indemnified party shall have the right however, that counsel to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent (except with the consent of the indemnified party), provided that, if ) also be counsel to the indemnified party. In no event shall the indemnifying party is obligated to pay the parties be liable for fees and expenses of more than one counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 9 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If the indemnification provided for in this Section 7 9 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders TCI on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by or on behalf of the Holder Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 9(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 79(d). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 9(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 7Sxxxxxx 0, an indemnifying party that is a selling Holder XXX shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party any Holders and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party TCI has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 79(d), each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersCompany.
Appears in 1 contract
Samples: Registration Rights Agreement (Trizec Properties Inc)
Indemnification; Contribution. (a) The Issuers agreeCompany and the Guarantor, jointly and severally, agree to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by the Initial Purchaser), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf the Initial Purchaser, such holder of such Holder Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls the Initial Purchaser or any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, provided further that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received if a Deferral NoticeNotice was given to such Notice Holder in accordance with Section 8(b), or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, the Guarantor and each person, if any, who controls the Company or the Guarantor within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the Guarantor, the holders of Registrable Securities, and each person, if any, who controls the Company, the Guarantor or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company or the Guarantor by the Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnity agreement. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if the indemnifying party is obligated to pay be liable for (a) the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law separate firm (in addition to any local counsel) ), whose fees must be reasonable, for the indemnified partiesInitial Purchaser, Holders of Registrable Securities, and all persons, if any, who control such indemnified party the Initial Purchaser or Holders of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict collectively (b) the fees and expenses of interest more than one separate firm (in addition to any local counsel), whose fees must be reasonable, for the Company and the Guarantor, and each person, if any, who controls the Company or the Guarantor within the meaning of either such Section, and that all fees and expenses payable under (a) and (b) above shall be reimbursed as they are incurred. In the case of any such separate firm for the Initial Purchaser, Holders of Registrable Securities, and different defenses among control persons of the indemnified partiesInitial Purchaser and Holders of Registrable Securities, such firm shall be designated in writing by the Initial Purchaser. In the case of any such separate firm for the Company and the Guarantor, and control persons of the Company and the Guarantor, such firm shall be designated in writing by the Company and the Guarantor. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, but if settled with such consent or if there be a final non-appealable judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement. Notwithstanding the immediately preceding 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, an indemnifying party shall not be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its consent if such indemnifying party (1) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (2) provides written notice to the indemnified party substantiating the unpaid balance as unreasonable, in each case prior to the date of such settlement.
(e) If the indemnification provided for in to which an indemnified party is entitled under this Section 7 6 is for any reason unavailable to or insufficient although applicable in accordance with its terms to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, incurred (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company and the Guarantor on the one hand and the Holders holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company and the Guarantor or by the Holder holder of the Registrable Securities or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party holder of Registrable Securities or by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party holder of Registrable Securities or the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such holder, and each person, if any, who controls the Company or the Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company or the Guarantor.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless each Holder, its directors, officers Holder and each personPerson, if any, who controls any Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Shelf Registration Statement (or any amendment thereto)) pursuant to which Registrable Securities were registered under the Securities Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the any 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below) any if such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) against any and all expense xxxxxxxx.xx incurred (including, subject to Section 7(c) belowthe provisions of subsection (c), against reasonable expenses (including the reasonable fees and disbursements of counselcounsel chosen by any Holder), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; providedPROVIDED, howeverHOWEVER, that this indemnity agreement shall does not apply to any loss, liability, claim, damage damage, liability or expense to the extent arising it arises out of any an untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the a Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this . The foregoing indemnity agreement with respect to any untrue statement contained in or any omission from a preliminary prospectus shall not apply inure to the benefit of any Holder (or any person controlling such Holder) from whom the person asserting any such loss, liability, claim, damage or expense (1) arising from an offer or sale purchased any of Registrable the Securities occurring during a Deferral Period, after that are the Holder received a Deferral Notice, or (2) subject thereof if the Holder fails to deliver Company shall sustain the burden of proving that such person was not sent or given a copy of the Prospectus (or the Prospectus as amended or supplemented) (in each case exclusive of the documents from which information is incorporated by reference) at or prior to the written confirmation of sale, the most recent sale of such Securities to such person and the untrue statement contained in or the omission from such preliminary prospectus was corrected in the Prospectus furnished to it by (or the Issuers, Prospectus as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact).
(b) In connection with any Shelf Registration in which a Each Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, agrees to indemnify and hold harmless the IssuersCompany, its directors, officers and each personPerson, if any, who controls the Issuers Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 6(a) of this Sectionhereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give prompt notice to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify shall not relieve such an indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of under this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others action. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such for all indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, parties in connection with any one action or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by separate but similar or related actions in the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party)jurisdiction, provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding the same general allegations or claim, 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 partycircumstances.
(d) If In order to provide for just and equitable contribution in circumstances in which the indemnification indemnity agreement provided for in this Section 7 6 is for any reason unavailable held to or insufficient to hold harmless an be unenforceable by the indemnified party parties although applicable in respect of any lossesaccordance with its terms, liabilities, claims, damages or expenses referred to therein, then each indemnifying party the Company and the Holders shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses of the nature contemplated by such indemnity agreement incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault Company and one or more of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such lossesHolders; PROVIDED, liabilitiesHOWEVER, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation.
. As between the Company and the Holders, such parties shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by such indemnity agreement in such proportion as shall be appropriate to reflect (i) the relative benefits received by the Company on the one hand and the Holders on the other hand, from the offering of the Exchange Securities or Registrable Securities included in such offering, and (ii) the relative fault of the Company on the one hand and the Holders on the other, with respect to the statements or omissions which resulted in such loss, liability, claim, damage or expense, or action in respect thereof, as well as any other relevant equitable considerations. The Company and the Holders of the Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 6 were to be determined by PRO RATA allocation or by any other method of allocation which does not take into account the relevant equitable considerations. For purposes of this Section 76, each personPerson, if any, who controls any a Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each persondirector of the Company, each officer of the Company who signed the Registration Statement, and each Person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersCompany.
Appears in 1 contract
Samples: Registration Rights Agreement (Cablevision Systems Corp)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless harmless, each Holder, its directorseach Person who participates as an underwriter, officers if any (any such Person being an “Underwriter”) and each personPerson, if any, who controls any such Holder or Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act in connection with sale of Securities pursuant to the Shelf Registration Statement under the terms of this Agreement during the Effectiveness Period as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Shelf Registration Statement (or any amendment or supplement thereto)) pursuant to which Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), ) or any Issuer Free Writing 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, ; provided that (subject to Section 7(c4(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable and documented fees and disbursements of counselcounsel chosen by any indemnified party), reasonably incurred and documented in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of (A) any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such any Holder or any personUnderwriter, if any, who controls any such Holder expressly for use in the a Shelf Registration Statement (or any amendment thereto), any Prospectus (or any preliminary prospectus amendment or the supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1B) arising from an offer or sale use of Registrable Securities occurring a Prospectus during a Deferral Periodperiod when use of such Prospectus has been validly suspended pursuant to Section 2.5 hereof, after the provided that such Holder has received a Deferral Noticeprior notice of such suspension, or (2C) if the failure of such Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuersa prospectus, as then amended or supplemented, and as required by applicable laws, provided that the Company shall have delivered to such Holder such Prospectus, as then amended or supplemented, would have corrected or (D) the gross negligence, willful misconduct or bad faith of any such untrue statement or omission or alleged untrue statement or omission of a material factparty seeking indemnification.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration StatementEach Holder, any preliminary prospectusseverally, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the IssuersCompany, each Underwriter, if any, and the other selling Holders, and each personof their respective directors and officers, and each Person, if any, who controls the Issuers Company, any Underwriter or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 4(a) of this Sectionhereof, as incurredincurred and documented, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus in reliance upon and in conformity with written information with respect to such Holder furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Shelf Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto)) or any Issuer Free Writing Prospectus; provided, however, that no such Holder shall be liable for any claims hereunder (i) in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement or (ii) to the extent arising out of the gross negligence, willful misconduct or the bad faith of the Company.
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. In case any such action, claim, suit, investigation or proceeding shall be brought against any indemnified party and it shall notify the Company of the commencement thereof, the Company shall be entitled to participate therein and to assume the defense thereof; provided, however, that in the event that any such action, claim, suit, investigation or proceeding includes both an indemnified party and the Company, and such indemnified party reasonably concludes that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying partyCompany, or if the indemnifying party so elects, may, or upon request of the indemnified party, shall Company fails to assume the defense of such the action, claim, suit, investigation or proceeding, including the employment of counsel reasonably satisfactory to the in either case in a timely manner, then such indemnified party may employ separate counsel to represent the indemnified party and or defend it in any others the indemnifying party may designate in such action, claim, suit, investigation or proceeding and shall the Company will pay the reasonable fees and disbursements of such counsel; provided, further, that the Company will not be required to pay the fees and disbursements of such more than one separate counsel related to such proceedingfor all indemnified parties (and one separate counsel local counsel). In any such proceedingaction, any claim, suit, investigation or proceeding the defense of which the Company assumes, the indemnified party shall will have the right to participate in such litigation and to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment’s own expense. No indemnifying party shall, shall (i) without the prior written consent of each the indemnified partyparties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 4 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (IA) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIB) 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 partyparty or (ii) be liable for any settlement of any such action effected without its prior written consent (which consent shall not be unreasonably withheld).
(d) Notwithstanding clause (ii) of Section 4(c), if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties Company on the one hand and of the indemnified party or parties Holders on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company, or by the Holder Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 7 4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 74. The aggregate amount of losses, liabilities, claims, damages and expenses incurred and documented by an indemnified party and referred to above in this Section 7 4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act0000 Xxx) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 74, each personPerson, if any, who controls any Holder within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as the IssuersHolder, and each director of the Company, and each Person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The obligations of the Company and the Holders pursuant to this Section 4 shall be in addition to any liability that such party may otherwise have.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, to Company will indemnify and hold harmless each Holderthe Agent and its affiliates, its and their respective past, present and future directors, officers officers, employees, agents and each person, if any, who controls any Holder controlling persons within the meaning of either Section 15 of the Securities Act or Section 20 the Exchange Act (collectively, “Indemnified Persons”), from and against any losses, claims, damages, expenses or liabilities whatsoever, joint or several, to which they or any of them may become subject (collectively, “Losses”), under the Securities Act, the Exchange Act, applicable state law or otherwise, insofar as follows:
such Losses (or proceedings or actions in respect thereof) arise out of or are based upon (i) against an untrue statement or alleged untrue statement of a material fact contained (A) in the Registration Statement, the Prospectus or any and individual Issuer-Represented Free Writing Prospectus (collectively, the “Offering Materials”), (B) any blue sky application, or other instrument or document of the Company or based upon written information supplied by the Company filed in any state or jurisdiction to register or qualify any or all of the Securities under the securities laws thereof, or to perfect any exemption from any such registration or qualification (collectively, the “Blue Sky Applications”), or (C) sales information or other document, advertisement, or communication prepared, made or executed by or on behalf of the Company with its consent or based upon written information furnished by or on behalf of the Company, whether or not filed in any jurisdiction, in order to qualify or register the Securities under the securities laws thereof (“Sales Information”) including for the foregoing (A) through (C) any amendment or supplement thereto, (ii) the omission or alleged omission to state in any Offering Materials, Blue Sky Applications or Sales Information, or any amendments or supplements thereto, a material fact required to be stated therein or necessary to make the statements therein not misleading, or (iii) from any theory of liability whatsoever relating to or arising from the Offering, the Offering Materials, the Blue Sky Applications, the Sales Information or other documents or materials distributed in connection with the Offering; provided, however, that the Company will not be liable in any such case to the extent that any such loss, liability, claim, damage and related expense, arising or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Offering Materials or Blue Sky Applications, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by the Agent expressly for use therein (provided that the Company and the Agent hereby acknowledge and agree that the only information that the Agent has furnished to the Company specifically for inclusion in any Offering Materials, Blue Sky Applications or Sales Information is the information in [_____ paragraph under the caption “Plan of Distribution”] in the Prospectus). The Company will promptly reimburse the Agent and each Indemnified Person upon written demand for any reasonable expenses (including fees and disbursements of counsel) incurred by the Agent or any Indemnified Persons in connection with investigating, preparing or defending any actions, proceedings or claims for which indemnification may be sought hereunder as such expenses are incurred.
(b) The Agent will indemnify and hold harmless the Company and its affiliates, and their respective past, present and future directors, officers, employees, agents and controlling persons within the meaning of the Securities Act or the Exchange Act against any Losses to which the Company may become subject, under the Securities Act or otherwise, insofar as such Losses (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 (any Offering Materials, Blue Sky Application or any amendment thereto), Sales Information or arise out of or are based upon the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in each case to the light of extent, but only to the circumstances under which they were madeextent, not misleading or arising out of any that such untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary was made in order to make the statements thereinany Offering Materials, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and related expense, to the extent of the aggregate amount paid in settlement of any litigation, Blue Sky Application or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below) any such settlement is effected with the prior written consent of the Issuers; and
(iii) subject to Section 7(c) below, against reasonable expenses (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made Sales Information in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder the Agent expressly for use therein (provided that the Company and the Agent hereby acknowledge and agree that the only information that the Agent has furnished to the Company specifically for inclusion in any Offering Materials, Blue Sky Applications or Sales Information is the information in [_____ paragraph under the caption “Plan of Distribution”] in the Registration Statement (or any amendment theretoProspectus), and will reimburse the Company for any legal or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it other expenses reasonably incurred by the Issuers, Company in connection with investigating or defending any such action or claim as amended or supplementedsuch expenses are incurred. The Agent will promptly reimburse the Company and its affiliates, and such Prospectustheir respective past, as amended or supplementedpresent and future directors, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder is participating in officers, employees, agents and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, and each person, if any, who controls the Issuers controlling persons within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against Act upon written demand for any reasonable expenses (including fees and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) disbursements of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement theretocounsel) in reliance upon and in conformity connection with written information furnished to the Issuers by investigating, preparing or on behalf of defending any actions, proceedings or claims for which indemnification may be sought hereunder as such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto)expenses are incurred.
(c) In case Promptly after receipt by an indemnified party under Section 6(a) or 6(b) of notice of the commencement of any proceeding action, proceeding, suit or claim (including any governmental investigation) shall be instituted involving any person whether commenced or threatened), such indemnified party will, if a claim in respect of which indemnity may thereof is to be sought pursuant to Section 7(a) or 7(b) hereofmade against the indemnifying party under such subsection, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) party in writingwriting thereof, but the failure to so notify shall not relieve such the indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall will not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying to any indemnified party under such subsection or otherwise. In case any such action is brought against any indemnified party, if the indemnifying party so electswill be entitled to participate therein and, mayto the extent that it desires, or upon request jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who will not, except with the consent of the indemnified party, shall be counsel to the indemnifying party). After notice from the indemnifying party to such indemnified party of its election to so assume the defense of such proceedingthereof, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related will not be liable to such proceeding. In any such proceeding, any indemnified party 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 In no event shall have the right to retain its own counsel, but indemnifying parties be liable for the fees and expenses of such counsel shall be at the expense more than one separate firm of such attorneys (unless an indemnified party unless (i) the indemnifying party and the indemnified party or parties shall have mutually agreed reasonably concluded that there may be defenses available to the retention it or them which are different from or in addition to those of such counsel, or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for all indemnified parties in connection with any one action, proceeding or claim or separate but similar or related actions, proceedings or claims in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shallwill, without the prior written consent of each the indemnified party, settle effect the settlement or compromise of, or consent to the entry of any judgment with respect to to, any litigation, pending or any investigation threatened action or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could may be sought under this Section 7 hereunder (whether or not each the indemnified party is an actual or potential party theretoto such action or claim), and unless the indemnified party agrees in writing otherwise, any such settlement, compromise or consent judgment must (Ii) includes include an unconditional release of each the indemnified party from all liability arising out of such litigation, investigation, proceeding action or claim, and (IIii) does not include a statement as to or an admission of fault, culpability or a failure to act act, by or on behalf of any indemnified party.
(d) If In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in this Section 7 6 is for due in accordance with its terms but is found in a final judgment by a court to be unavailable from the Company or the Agent, the Company and the Agent will contribute to the Losses contemplated by such indemnification (including any reason unavailable to or insufficient to hold harmless an indemnified party investigation, legal and other expenses incurred in respect connection therewith and any amount paid in settlement of any lossesaction, liabilitiessuit, claimsor proceeding of any claims asserted, damages but after deducting any contribution received by the Company or expenses referred the Agent from third parties who may also be liable for contribution) in such proportion so that (i) the Agent is responsible for that portion represented by the percentage that the Placement Fees and Advisory Fee, less any portion of the Placement Fees and Advisory Fee paid by the Agent to thereinassisting brokers, if any, bear to the total gross proceeds received by the Company from the sale of the Securities in the Offering, and (ii) the Company will be responsible for the balance. If, however, the allocation provided above is not permitted by applicable law, then each indemnifying party shall will contribute to the aggregate such amount of such losses, liabilities, claims, damages and expenses incurred by paid or payable to such indemnified party, as incurred, party in such proportion as is appropriate to reflect the not only such relative fault of the indemnifying party or parties Company on the one hand and of the indemnified party or parties Agent on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expensesliabilities (or actions, proceedings or claims in respect thereof), but also the relative benefits received by the Company on the one hand and the Agent on the other from the Offering, as well as any other relevant equitable considerations.
(e) . The relative fault of benefits received by the Issuers Company on the one hand and the Holders Agent on the other hand shall will be deemed to be in the same proportion as the total proceeds from the Offering received by the Company bear, with respect to the Agent, to the total Placement Fees and Advisory Fee not including expenses received by the Agent less the portion of such fees paid by the Agent to assisting brokers, if any. The relative fault will be determined by reference to, among other things, whether any such 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 Issuers Company on the one hand, or by the Holder Agent on the other hand, and the parties’ relative intent, good faith, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company and the Agent agree that it would not be just and equitable if contribution pursuant to this Section 7 6(d) were determined by pro pro-rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(d). The aggregate amount of losses, liabilities, claims, damages and expenses incurred paid or payable by an indemnified party and as a result of the Losses (or action, proceedings or claims in respect thereof) referred to above in this Section 7 shall 6(d) will be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigationsuch action, proceeding or claim. The Company expressly acknowledges and agrees that the Agent will not be liable for any Losses, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount amount, which in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public aggregate exceeds the amount paid (excluding reimbursable expenses) to the Agent under this Agreement less the portion of such fees paid by the Agent to any assisting brokers, if any. It is understood and agreed that the above-stated limitation on the Agent’s liability is essential to the Agent and that the Agent would not have entered into this Agreement if such limitation had not been agreed to by the parties to this Agreement. No person found guilty of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall will be entitled to contribution with respect to any loss or liability arising from such misrepresentation from any person who was not found guilty of such fraudulent misrepresentation.
(i) . The duties, obligations and liabilities of the Company and the Agent under this Section 6 are in addition to any duties, obligations and liabilities which the Holding Company and the Agent may otherwise have. For purposes of this Section 76, each of the Agent’s and the Company’s officers, directors and controlling persons within the meaning of the Securities Act and the Exchange Act will have the same rights to contribution as the Company and the Agent. Any party entitled to contribution, promptly after receipt of notice of commencement of any action, suit, claim or proceeding against such party in respect of which a claim for contribution may be made against another party under this Section 6(d), will notify such party from whom contribution may be sought, but the omission to so notify such party will not relieve the party from whom contribution may be sought from any other obligation it may have hereunder or otherwise than under this Section 6.
(e) The obligations of the Company under this Section 6 are in addition to any liability which the Company may otherwise have and extend, upon the same terms and conditions, to each person, if any, who controls any Holder (within the meaning of Section 15 the Securities Act) the Agent, or any of the Securities Act or Section 20 respective partners, directors, officers and employees of the Exchange Act shall Agent or any such controlling person; and the obligations of the Agent under this Section 6 are in addition to any liability which the Agent may otherwise have and extend, upon the same rights terms and conditions, to contribution as such Holdereach director of the Company, each officer of the Company who signs the Registration Statement and to each person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersAct.
Appears in 1 contract
Indemnification; Contribution. (a) Indemnification by the Company. The Issuers agree, jointly and severally, Company agrees to indemnify and ------------------------------ hold harmless each Holder, its directorsHolder and the beneficial owners, officers and directors and each personPerson, if any, who controls any each Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, arising as incurred, to which each Holder, or any beneficial owner, officer, director or controlling Person may become subject under the Securities Act or otherwise (A) that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading or arising (B) that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Shelf Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or any omission or alleged omission, provided that (subject to Section 7(c) below) any if such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to the limitations set forth in Section 7(c) below6(c), against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any 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 or alleged omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that the indemnity provided pursuant to this indemnity agreement Section 6(a) -------- ------- shall not apply with respect to any loss, liability, claim, damage or expense to the extent arising that arises out of or are based upon any untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such any Holder or any person, if any, who controls any such Holder (i) expressly for use in the Shelf Registration Statement (or any amendment thereto), or any preliminary prospectus or the Shelf Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, and each person, if any, who controls the Issuers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, thereto or (ii) the named parties pursuant to any such proceeding (including representation, warranty or other statement contained in the Contribution Agreement or any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent admission amendment to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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 partyPartnership Agreement.
(d) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c6(c) below, against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, and each person, if any, who controls the Issuers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.in
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchasers and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchasers or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; providedPROVIDED, howeverHOWEVER, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by each and any Initial Purchaser or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder Initial Purchaser or any such holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, each Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers in writing Company expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, each Initial Purchaser and each person, if any, who controls the Issuers any Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). Each of the Initial Purchasers agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and each person, if any, who controls the Company or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information furnished to the Company by such Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingaction; PROVIDED, any indemnified party shall have the right HOWEVER, that counsel to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent (except with the consent of the indemnified party), provided that, if ) also be counsel to the indemnified party. In no event shall the indemnifying party is obligated to pay the parties be liable for fees and expenses of more than one counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request for fees and expenses prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or such Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or such Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor any Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party holder of Registrable Securities or unwritten by such Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has holder of Registrable Securities or such Initial Purchaser have otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls any Holder Initial Purchaser or any holder of Registrable Securities within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such HolderInitial Purchaser or such holder, and each person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersCompany.
Appears in 1 contract
Samples: Registration Rights Agreement (Osi Pharmaceuticals Inc)
Indemnification; Contribution. (a) The Issuers Company, FTL-Cayman and each of the Guarantor Subsidiaries agree, jointly and severally, to indemnify and hold harmless each Holder, its directorseach Participating Broker-Dealer, officers each Person who participates as an underwriter (any such Person being an "Underwriter"), their respective affiliates, and each personPerson, if any, who controls any Holder of such parties within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act1934 Act and each of their respective directors, officers, employees and agents, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment or supplement thereto)) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided ; PROVIDED that (subject to Section 7(c4(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party, except to the extent otherwise expressly provided in Section 4(c) hereof), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any ;
(i) from whom the person asserting such loss, liability, claim, damage or expense liability purchased the Securities which are the subject thereof if a prospectus was required to be delivered under the extent arising out 1933 Act and such person did not receive a copy of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the final Prospectus (or any amendment the final Prospectus as amended or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1supplemented) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished sale of such Securities to it by such person in any case where the IssuersCompany complied with its obligations under Section 3(c) or 3(f)(A)(ii) hereof, as amended or supplementedapplicable, and such Prospectus, as amended or supplemented, would have corrected any such untrue statement or omission or alleged untrue statement or omission of a material factfact contained in such preliminary prospectus (or any amendment or supplement thereto) or final Prospectus was corrected in the final Prospectus (or the final Prospectus as amended or supplemented) or (ii) if it resulted from the use of the Prospectus during a period when the use of the Prospectus had been suspended in accordance with Section 2.4(b) or Sections 3(e)(ii), 3(e)(iii), 3(e)(v) and 3(e)(vi) hereof; PROVIDED, in each case, that Holders received prior notice of such suspension.
(b) In connection with any Shelf Registration in which a Each Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statementseverally, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the IssuersCompany, FTL-Cayman, the Guarantor Subsidiaries, each Underwriter and the other selling Holders, and each personof their respective directors and officers, and each Person, if any, who controls the Issuers Company, FTL-Cayman, the Guarantor Subsidiaries, any Underwriter or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 4(a) of this Sectionhereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder Company expressly for use in the Shelf Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto); PROVIDED, HOWEVER, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure so to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; PROVIDED, and the indemnifying partyHOWEVER, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, which consent shall not be unreasonably withheld) also be counsel to the indemnified party. Notwithstanding the foregoing, if it so elects within a reasonable time after receipt of such notice, an indemnifying party, jointly with any other indemnifying parties receiving such notice, may assume the defense of such proceeding, including the employment of action with counsel reasonably satisfactory to chosen by it and approved by the indemnified party parties defendant in such action (which approval shall not be unreasonably withheld), unless such indemnified parties reasonably object to represent such assumption on the indemnified party and any others the ground that there may be legal defenses available to them which are different from or in addition to those available to such indemnifying party. If an indemnifying party may designate in such proceeding and shall pay assumes the fees and disbursements defense of such counsel related to such proceeding. In any such proceedingaction, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the be liable for any fees and expenses of counsel for other the indemnified parties, parties incurred thereafter in connection with such action. In no event shall the indemnifying party shall or parties be obligated to pay only liable for the fees and expenses associated with of more than one attorney or law firm counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 4 (whether or not each if the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel pursuant to Section 4(a)(iii) hereof, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) The Guarantor Subsidiaries shall not be required by this Section 4 or otherwise under this Agreement to make any payment to any Holder, Participating Broker-Dealer or Underwriter or any person, if any, who controls any such person, so long as and to the extent that the Company and FTL-Cayman pay and perform in full their obligations to such person and controlling person under this Section 7 or otherwise under this Agreement.
(f) If the indemnification provided for in this Section 7 4 is for any reason unavailable to to, or insufficient to hold harmless harmless, an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative fault of benefits received by the indemnifying party or parties Company, FTL-Cayman and the Guarantor Subsidiaries on the one hand and the Holders on the other hand, from the offering of the indemnified party Securities, the Exchange Securities and the Registrable Securities (taken together) included in such offering or parties (ii) if the allocation provided by clause (i) 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, FTL-Cayman and the Guarantor Subsidiaries on the one hand, and the Holders on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
. The relative benefits received by the Company, FTL-Cayman and the Guarantor Subsidiaries from the offering of the Securities, the Exchange Securities and the Registrable Securities (etaken together) included in such offering shall in each case be deemed to include the proceeds received by the Company in connection with the offering of the Securities pursuant to the Purchase Agreement. The relative fault of the Issuers Company, FTL-Cayman and the Guarantor Subsidiaries on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by FTL-Cayman or the Holder Holders and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company, FTL-Cayman and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 7 4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 74. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever whatsoever, based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 74, each personPerson, if any, who controls any a Holder within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as such Holder, and each persondirector of the Company, FTL-Cayman or any Guarantor Subsidiary, each officer of the Company, FTL-Cayman or any Guarantor Subsidiary who signed the Registration Statement and each Person, if any, who controls the Issuers Company, FTL-Cayman or any Guarantor Subsidiary within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as the IssuersCompany, FTL-Cayman and the Guarantor Subsidiaries.
Appears in 1 contract
Samples: Registration Rights Agreement (Winfield Cotton Mill Inc)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless each HolderTCI, its directors, officers any other Holder and each person, if any, who controls TCI or any other Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, Act as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or the any 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c9(c) below, against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of TCI or such Holder or any person, if any, who controls any such other Holder expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the any Prospectus (or any amendment or supplement thereto); provided, further, provided further that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after if the indemnified party is a Notice Holder that received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact. This indemnity agreement will be in addition to any liability that the Company may otherwise have.
(b) In connection with any Shelf Registration Statement in which a Holder is participating in and furnishing information relating to such Holder to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, TCI agrees to indemnify and hold harmless the IssuersCompany, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Issuers Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingaction; provided, any indemnified party shall have the right however, that counsel to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent (except with the consent of the indemnified party), provided that, if ) also be counsel to the indemnified party. In no event shall the indemnifying party is obligated to pay the parties be liable for fees and expenses of more than one counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 9 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If the indemnification provided for in this Section 7 9 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders TCI on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by or on behalf of the Holder Holders and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 9(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 79(d). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 9(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 7Xxxxxxx 0, an indemnifying party that is a selling Holder XXX shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party any Holders and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party TCI has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 79(d), each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersCompany.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchasers, each Holder, its directorseach Participating Broker-Dealer, officers each Person who participates as an underwriter (any such Person being an "Underwriter"), their respective affiliates, and each personPerson, if any, who controls any Holder of such parties within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and each of their respective directors, officers, employees and agents, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration any Regis- tration Statement (or any amendment or supplement thereto)) pursuant to which Exchange Securities or Registrable Securities were registered under the Securities Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement state- ment or alleged untrue statement of a material fact included contained in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, ; provided that (subject to Section 7(c4(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party, except to the extent otherwise expressly provided in Section 4(c) hereof), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense whatsoever to the 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 the Issuers Company by the Initial Purchasers, such Holder, Participating Broker-Dealer or on behalf of such Holder Underwriter (or any personperson controlling such Initial Purchasers, if anyHolder, who controls any such Holder Participating Broker-Dealer or Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) expressly for use in the a Registration Statement (or any amendment or supplement thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this such indemnity agreement with respect to any preliminary prospectus shall not apply inure to the benefit of any Initial Purchasers, Holder, Participating Broker-Dealer or Underwriter (or any persons controlling such Initial Purchasers, Participating Broker-Dealer, Holder or Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) (i) from whom the person asserting such loss, liability, claim, damage or expense liability purchased the Securities which are the subject thereof if such person did not receive a copy of the final Prospectus (1or the final Prospectus as amended or supplemented) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished sale of such Securities to it by such person in any case where the Issuers, as amended or supplemented, Company complied with its obligations under Sections 3(c) and such Prospectus, as amended or supplemented, would have corrected 3(f)(A)(ii) hereof and any such untrue statement or omission or alleged untrue statement or omission of a material factfact contained in such preliminary prospectus (or any amendment or supplement thereto) was corrected in the final Prospectus (or the final Prospectus as amended or supplemented) or (ii) if it resulted from the use of the Prospectus during a period when the use of the Prospectus has been suspended in accordance with Section 2.4(b) or Sections 3(e)(ii), 3(e)(iii), 3(e)(v) and 3(e)(vi) hereof; provided, in each case, that Holders received prior notice of such suspension.
(b) In connection with any Shelf Registration in which a Each Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statementseverally, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the IssuersCompany, the Initial Purchasers, each Underwriter and the other selling Holders, and each personof their respective directors, officers, employees and agents, and each Person, if any, who controls the Issuers Company, the Initial Purchasers, any Underwriter or any other selling Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 4(a) of this Sectionhereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder Company expressly for use in the Shelf Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure so to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. Notwithstanding the foregoing, shall if it so elects within a reasonable time after receipt of such notice, an indemnifying party, jointly with any other indemnifying parties receiving such notice, may assume the defense of such proceeding, including the employment of action with counsel reasonably satisfactory to chosen by it and approved by the indemnified party parties defendant in such action (which approval shall not be unreasonably withheld), unless such indemnified parties reasonably object to represent such assumption on the indemnified party and any others the ground that there may be legal defenses available to them which are different from or in addition to those available to such indemnifying party. If an indemnifying party may designate in such proceeding and shall pay assumes the fees and disbursements defense of such counsel related to such proceeding. In any such proceedingaction, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the be liable for any fees and expenses of counsel for other the indemnified parties, parties incurred thereafter in connection with such action. In no event shall the indemnifying party shall or parties be obligated to pay only liable for the fees and expenses associated with of more than one attorney or law firm counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 4 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 4 is for any reason unavailable to to, or insufficient to hold harmless harmless, an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand, the Holders on another hand, and the Initial Purchasers on another hand, from the offering of the Securities, the Exchange Securities and the Registrable Securities (taken together) included in such offering or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party or parties Company on the one hand, the Holders on another hand and of the indemnified party or parties Initial Purchasers on the other another hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
. The relative benefits received by the Company from the offering of the Securities, the Exchange Securities and the Registrable Securities (etaken together) included in such offering shall in each case be deemed to include the proceeds received by the Company in connection with the offering of the Securities pursuant to the Purchase Agreement. The parties hereto agree that any underwriting discount or commission or reimbursement of fees paid to the Initial Purchasers pursuant to the Purchase Agreement shall not be deemed to be a benefit received by the Initial Purchasers in connection with the offering of the Exchange Securities or Registrable Securities included in such offering. The relative fault of the Issuers Company on the one hand and hand, the Holders on another hand, and the other Initial Purchasers on another hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company, the Holders or by the Holder Initial Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 7 4 were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 74. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 74, an indemnifying party that is a selling Holder no Initial Purchaser shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public them were offered to the public exceeds the amount of any damages that which such indemnifying party has Initial Purchasers have otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f1 l(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 74, each personPerson, if any, who controls any an Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Initial Purchaser or Holder, and each persondirector of the Company, each officer of the Company who signed the Registration Statement and each Person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersCompany. The Initial Purchasers' respective obligations to contribute pursuant to this Section 4 are several in proportion to the principal amount of Securities set forth opposite their respective names in Schedule A to the Purchase Agreement and not joint.
Appears in 1 contract
Samples: Registration Rights Agreement (Bally Total Fitness Holding Corp)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchasers and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchasers or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 relating to the Initial Purchasers furnished to the Issuers Company in writing by the Initial Purchasers or on behalf a Holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any Initial Purchaser or any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder Holder, including, without limitation, the Initial Purchasers, of Registrable Securities is participating participating, in and furnishing information relating to such Holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchasers and each person, if any, who controls the Issuers any Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any of Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchasers agree to indemnify and hold harmless the Company, the Holders of Registrable Securities, and each person, if any, who controls the Company or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Initial Purchasers expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party (i) shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingaction; provided, any indemnified party shall have the right however, that counsel to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent (except with the consent of the indemnified party), provided that, if ) also be counsel to the indemnified party. In no event shall the indemnifying party is obligated to pay the parties be liable for fees and expenses of more than one counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders of the Registrable Securities or the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder of the Registrable Securities or the Initial Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company, the Initial Purchasers and the Holders of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling neither the Holder of any Registrable Securities nor the Initial Purchasers, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities were sold by such indemnifying party and distributed Holder of Registrable Securities pursuant to a Registration Statement or resold by the public were offered to Initial Purchasers as contemplated by the public Purchase Agreement as the case may be, exceeds the amount of any damages that such indemnifying party Holder of Registrable Securities has or the Initial Purchasers have otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls an Initial Purchaser or any Holder within the meaning of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchasers or such Holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchasers and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchasers or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by the Initial Purchasers or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls the Initial Purchasers or any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Initial Purchasers, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchasers and each person, if any, who controls the Issuers Initial Purchasers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). Each of the Initial Purchasers agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and each person, if any, who controls the Company or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Initial Purchasers expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingaction; provided, any indemnified party shall have the right however, that counsel to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent (except with the consent of the indemnified party), provided that, if ) also be counsel to the indemnified party. In no event shall the indemnifying party is obligated to pay the parties be liable for fees and expenses of more than one counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Initial Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Initial Purchasers, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party holder of Registrable Securities or underwritten by the Initial Purchasers, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party holder of Registrable Securities or the Initial Purchasers has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchasers or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchasers or such holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Province Healthcare Co)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless each Holder, its directors, the Holders and their directors and officers and each person, if any, who controls any Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the a Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below7(d)) any such settlement is effected with the prior written consent of the IssuersCompany (which shall not be unreasonably withheld); and
(iii) subject to Section 7(c) below), against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) aboveof this Section 7(a); provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of such Holder or any personthe Holder, if any, who controls any such Holder expressly for use in the a Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, provided further that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during any period, if a Deferral Period, after the Notice was given to such Holder received a Deferral Noticein accordance with Section 4(i), or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material factfact and the delivery thereof was required by law.
(b) In connection with any Shelf Registration in which a Holder is participating participating, in and furnishing information relating to such Holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in each such Shelf Registration Statement agreeHolder agrees, severally and not jointly, to indemnify and hold harmless the Issuers, other Holders and each person, if any, who controls the Issuers other Holders within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this SectionSection 7(a), as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus ) or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the these indemnity provisions. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain a separate firm as its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include representation of both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified partyparty in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (A) in the case of indemnification under Section 7(a), provided that, if the indemnifying party is obligated to pay the reasonable fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law firm (in addition to any local counsel) for the indemnified partiesHolders, and all persons, if any, who control such indemnified party the Holders within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct or (B) in the case of indemnification under Section 7(b), unless there exists a conflict the reasonable fees and expenses of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for more than one firm (in addition to any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, but if settled with such consent or if there be a final judgment local counsel) for the plaintiffCompany, their directors, and each person, if any, who controls the indemnifying party agrees to indemnify Company within the indemnified party from meaning of either such Section, and against any loss or liability that all such reasonable fees and expenses shall be reimbursed as they are incurred. In the event a separate firm is retained for the Holders, and control persons of the Holders, such firm shall be designated in writing by reason the Holders. In the event a separate firm is retained for the Company, and such directors, officers and control persons of the Company, such settlement or judgmentfirm shall be designated in writing by the Company. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party (which may be conditioned on a cross release from such indemnified party, which shall not be unreasonably withheld) from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 45 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement; provided that an indemnifying party shall not be liable for any such settlement effected without its consent if such indemnifying party (1) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (2) provides written notice to the indemnified party describing any unpaid balance it believes is unreasonable and the reasons therefor, in each case prior to the date of such settlement.
(e) If the indemnification provided for in to which an indemnified party is entitled under this Section 7 is for any reason unavailable to or insufficient although applicable in accordance with its terms to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 7(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 77(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 7(e) shall be deemed to include any out-of-pocket legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling no Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public Holder exceeds the amount of any damages that such indemnifying party Holder has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 77(e), each person, if any, who controls the any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersCompany.
(f) The provisions of this Section 7 shall be in addition to any other rights to indemnification or contribution that an indemnified party may have pursuant to law, equity or otherwise.
Appears in 1 contract
Samples: Registration Rights Agreement (Georgia Gulf Corp /De/)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Purchasers and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Purchasers or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c6(c) below, against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of the Purchasers, such Holder holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls the Purchasers or any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, provided further that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received if a Deferral NoticeNotice was given to such Notice Holder in accordance with Section 8(c), or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) fact and the delivery thereof was required by law. In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Purchasers, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Purchasers and each person, if any, who controls the Issuers Purchasers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
. The Purchasers agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and each person, if any, who controls the Company or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act severally and not jointly against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (ca) In case of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Purchasers expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the these indemnity provisions. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain a separate firm as its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if be liable for (A) the indemnifying party is obligated to pay the reasonable fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law firm (in addition to any local counsel) for the indemnified partiesPurchasers, Holders of Registrable Securities, and all persons, if any, who control such indemnified party the Purchasers or Holders of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict Act or (B) the reasonable fees and expenses of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for more than one firm (in addition to any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, but if settled with such consent or if there be a final judgment local counsel) for the plaintiffCompany, their directors, and each person, if any, who controls the indemnifying party agrees to indemnify Company within the indemnified party from meaning of either such Section, and against any loss or liability that all such reasonable fees and expenses shall be reimbursed as they are incurred. In the event a separate firm is retained for the Purchasers, Holders of Registrable Securities, and control persons of the Purchasers and Holders of Registrable Securities, such firm shall be designated in writing by reason the Purchasers. In the event a separate firm is retained for the Company, and such directors, officers and control persons of the Company, such settlement or judgmentfirm shall be designated in writing by the Company. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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.
. If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (di) such settlement is entered into more than 60 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 45 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement; provided that an indemnifying party shall not be liable for any such settlement effected without its consent if such indemnifying party (1) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (2) provides written notice to the indemnified party describing any unpaid balance it believes is unreasonable and the reasons therefor, in each case prior to the date of such settlement. If the indemnification provided for in to which an indemnified party is entitled under this Section 7 6 is for any reason unavailable to or insufficient although applicable in accordance with its terms to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Purchasers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any out-of-pocket legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Purchasers shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to holder of Registrable Securities or by the public were offered to Purchasers, as the public case may be, exceeds the amount of any damages that such indemnifying party holder of Registrable Securities or the Purchasers has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Purchasers or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersPurchasers or such holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless each Holder, its directors, officers of the Initial Purchasers and each Holder of Registrable Securities and each person, if any, who controls any of the Initial Purchasers or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, arising out of as incurred, resulting from any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of resulting from any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c6(c) below, against reasonable expenses any and all expense whatsoever (including the reasonable fees and disbursements of counsel), as reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clause (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of such Holder the Initial Purchasers or any Holder of Registrable Securities and each person, if any, who controls any of the Initial Purchasers or any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the if a Notice Holder received was given a Deferral Notice, Notice or (2) if the a Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement of a material fact or omission would have included the omitted or allegedly omitted statement of a material fact.
(b) In connection with any Shelf Registration Statement in which a Holder Holder, including, without limitation, any of the Initial Purchasers, of Registrable Securities is participating participating, in and furnishing information relating to such Holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless each of the Issuers, Initial Purchasers and each person, if any, who controls any of the Issuers Initial Purchasers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, its directors and each officer who signed such Registration Statement and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchasers agree to indemnify and hold harmless the Company, the Holders of Registrable Securities, and each person, if any, who controls the Company or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Initial Purchasers expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnity agreement. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if the indemnifying party is obligated to pay be liable for (A) the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law separate firm (in addition to any local counsel) for the indemnified partiesInitial Purchasers, Holders of Registrable Securities, and all persons, if any, who control such indemnified party the Initial Purchasers or Holders of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict collectively or (B) the fees and expenses of interest or more than one separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for firm (in addition to any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, but if settled with such consent or if there be a final judgment local counsel) for the plaintiffCompany, its directors and each officer who signed the indemnifying party agrees to indemnify Registration Statement and each person, if any, who controls the indemnified party from Company within the meaning of either such Section, and against any loss or liability by reason of that all such settlement or judgmentfees and expenses shall be reimbursed as they are incurred. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ix) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIy) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than forty-five (45) days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least thirty (30) days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement. Notwithstanding the immediately preceding 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, an indemnifying party shall not be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its consent if such indemnifying party (A) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (B) provides written notice to the indemnified party stating the indemnifying party's basis for its belief that any unpaid balance of such request is unreasonable, in each case prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders of the Registrable Securities or the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder Holders of the Registrable Securities or the Initial Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling neither the Holder of any Registrable Securities nor the Initial Purchasers, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party Holder of Registrable Securities or by the Initial Purchasers, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party Holder of Registrable Securities or the Initial Purchasers has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls any of the Initial Purchasers or any Holder of Registrable Securities within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Initial Purchasers or such Holder, and each person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersCompany.
Appears in 1 contract
Samples: Registration Rights Agreement (Mandalay Resort Group)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchasers, each Holder, its directors, officers Holder and each person, if any, who controls any Initial Purchaser or any Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment or supplement thereto)) pursuant to which Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, ; provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by the Initial Purchasers or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the a Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Each Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statementseverally, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the IssuersCompany, the Initial Purchasers, the other selling Holders, and each of their respective directors and officers, and each person, if any, who controls the Issuers Company, any Initial Purchaser or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 6(a) of this Sectionhereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in conformity with written information with respect to such Holder furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Shelf Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure so to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the Section 6. An indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements expenses of such counsel related to such proceeding; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In any such proceeding, any indemnified no event shall the indemnifying party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 45 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which that resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder Holders and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling no Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public Holder exceeds the amount of any damages that such indemnifying party Holder has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76, each person, if any, who controls any Initial Purchaser or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Initial Purchaser or Holder, and each director of and each person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersCompany.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchasers and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchasers or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of Initial Purchasers or such Holder or any holder of Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls the Initial Purchasers or any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); and provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received if a Deferral NoticeNotice was given to such notice Holder in accordance with Section 8(c), or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material factfact and the delivery thereof was required by law and would have constituted a complete defense to the claim in respect of such untrue statement or omission or alleged untrue statement or omission.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Initial Purchasers, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchasers and each person, if any, who controls the Issuers Initial Purchasers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any holder of Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). Each of the Initial Purchasers agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and each person, if any, who controls the Company or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section 6, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Initial Purchasers expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingaction; provided, any indemnified party shall have the right however, that counsel to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent (except with the consent of the indemnified party), provided that, if ) also be counsel to the indemnified party. In no event shall the indemnifying party is obligated to pay the parties be liable for fees and expenses of more than one counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than forty-five (45) days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least thirty (30) days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Initial Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Initial Purchasers, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party holder of Registrable Securities or underwritten by the Initial Purchasers, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party holder of Registrable Securities or the Initial Purchasers has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchasers or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchasers or such holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Cox Communications Inc /De/)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, to Company shall indemnify and hold harmless the Initial Purchaser, each Holder, (in its directorscapacity as a participant in any Exchange Offer or Shelf Registration transaction), officers each Participating Broker-Dealer, each Person who participates as an underwriter (any such Person being an "Underwriter") and each personPerson, if any, who controls any Holder or Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment or supplement thereto)) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, ; provided that (subject to Section 7(c4(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c4(c) below, against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counselcounsel chosen by Bear Steaxxx, xx in the event that Bear Steaxxx xx not an indemnified party, by a majority of the indemnified parties), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, and each person, if any, who controls the Issuers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.;
Appears in 1 contract
Samples: Registration Rights Agreement (National Oilwell Inc)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser, each Holder, its directors, officers each Person who participates as an underwriter (any such Person being an “Underwriter”) and each personPerson, if any, who controls any such Initial Purchaser, Holder or Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Shelf Registration Statement (or any amendment or supplement thereto), including the Rule 430B information, pursuant to which Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), ) or any Issuer Free Writing 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission; provided, provided that (subject to Section 7(c4(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all reasonable out-of-pocket expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of such any Holder or any person, if any, who controls any such Holder Underwriter expressly for use in the a Shelf Registration Statement (or any amendment thereto), including the Rule 430B information, any Prospectus (or any preliminary prospectus amendment or the supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration StatementEach Holder, any preliminary prospectusseverally, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the IssuersCompany, the Initial Purchaser, each Underwriter and the other selling Holders, and each personof their respective directors and officers, and each Person, if any, who controls the Issuers Company, the Initial Purchaser, any Underwriter or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 4(a) of this Sectionhereof, as incurredincurred (including the fees and disbursements of counsel chosen by the Company), but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), including the Rule 430B Information, or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus in reliance upon and in conformity with written information with respect to such Holder furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Shelf Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto)) or any Issuer Free Writing Prospectus; provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, shall assume the defense of such proceeding, including the employment of ) also be counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others party. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 4 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties Company on the one hand and of the indemnified party or parties Holders and the Initial Purchaser on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders and the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company, or by the Holder Holders or the Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company, the Holders and the Initial Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 7 4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 74. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 4 shall be deemed to include any reasonable out-of-pocket legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 74, an indemnifying party that is a selling Holder the Initial Purchaser shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public it were offered to the public exceeds the amount of any damages that such indemnifying party which the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act0000 Xxx) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 74, each personPerson, if any, who controls any the Initial Purchaser or Holder within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as such Initial Purchaser or Holder, and each persondirector of the Company, and each Person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as the IssuersCompany.
Appears in 1 contract
Indemnification; Contribution. (a) Indemnification by the Company. The Issuers agree, jointly and severally, Company agrees to indemnify and ------------------------------ hold harmless each Holder, its directorsthe Holder and the beneficial owners, officers and directors and each personPerson, if any, who controls any the Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, arising as incurred, to which the Holder, or any beneficial owner, officer, director or controlling Person may become subject under the Securities Act or otherwise (A) that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading or arising (B) that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Shelf Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or any omission or alleged omission, provided that (subject to Section 7(c) below) any if such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to the limitations set forth in Section 7(c) below6(c), against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any 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 or alleged omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that the indemnity provided pursuant to this indemnity agreement Section 6(a) -------- ------- shall not apply with respect to any loss, liability, claim, damage or expense to the extent arising that arise out of or are based upon any untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such the Holder or any person, if any, who controls any such Holder (i) expressly for use in the Shelf Registration Statement (or any amendment thereto), or any preliminary prospectus or the Shelf Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, and each person, if any, who controls the Issuers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, thereto or (ii) the named parties pursuant to any such proceeding (including representation, warranty or other statement contained in the Contribution Agreement or any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent admission amendment to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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 partyPartnership Agreement.
(d) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.
Appears in 1 contract
Samples: Registration Rights and Lock Up Agreement (Weeks Corp)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to ----------------------------- indemnify and hold harmless the Initial Purchaser, each Holderholder of Registrable Securities and the respective Affiliates thereof, its including the respective officers, directors, officers employees, agents and each person, if any, who controls any Holder within the meaning of either Section 15 representatives of the Initial Purchaser, each holder of Registrable Securities Act or Section 20 of and the Exchange Actrespective Affiliates thereof, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of legal counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, -------- ------- claim, damage or expense to the 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 the Issuers Company by the Initial Purchaser, such holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or on behalf of such Holder or any personthe respective Affiliates thereof, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the IssuersInitial Purchaser, the Company and the respective Affiliates thereof, including the respective officers, directors, employees, agents and representatives of the Initial Purchaser, the Company, and each person, if any, who controls the Issuers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Actrespective Affiliates thereof, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and the respective Affiliates thereof, including the respective officers, directors, employees, agents and representatives of the Company, the holders of Registrable Securities and respective Affiliates thereof, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingaction; provided, any indemnified party shall have the right however, that counsel to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent (except with -------- ------- the consent of the indemnified party), provided that, if ) also be counsel to the indemnified party. In no event shall the indemnifying party is obligated to pay the parties be liable for fees and expenses of more than one counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party holder of Registrable Securities or underwritten by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party holder of Registrable Securities or the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Marriott International Inc /Md/)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchasers and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchasers or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, and each person, if any, who controls the Issuers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.by
Appears in 1 contract
Samples: Registration Rights Agreement (Province Healthcare Co)
Indemnification; Contribution. (a) The Issuers agreeCompany and the Guarantors, jointly and severally, agree to indemnify and hold harmless each Initial Purchaser, each Holder, its directorseach Participating Broker-Dealer, officers each Person who participates as an underwriter (any such Person being an “Underwriter”) and each personPerson, if any, who controls any Holder or Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment or supplement thereto)) pursuant to which Exchange Securities or Transfer Restricted Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), ) or any Issuer Free Writing 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, ; provided that (subject to Section 7(c4(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (A) to the 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 the Issuers Company by or on behalf of such the Holder or any person, if any, who controls any such Holder Underwriter expressly for use in the a Registration Statement (or any amendment thereto), ) or any preliminary prospectus Prospectus (or the any amendment or supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2B) if as a result of the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission use of a material factProspectus during a period when use of such Prospectus has been validly suspended pursuant to Section 2.7 hereof, provided that such Holder has received prior written notice of such suspension.
(b) In connection with any Shelf Registration in which a Each Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statementseverally, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the IssuersCompany, the Guarantors, each Initial Purchaser, each Underwriter and the other selling Holders, and each personof their respective directors and officers, and each Person, if any, who controls the Issuers Company, any Initial Purchaser, any Underwriter or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 4(a) of this Sectionhereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus in reliance upon and in conformity with written information with respect to such Holder furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Shelf Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto)) or any Issuer Free Writing Prospectus; provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of such Holder’s Transfer Restricted Securities pursuant to such Shelf Registration Statement.
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure so to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, shall assume the defense of such proceeding, including the employment of ) also be counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others party. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for the all indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for parties in connection with any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentone action. No indemnifying party shall, (i) without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 4 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (IA) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIB) 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 partyparty or (ii) be liable for any settlement of any such action effected without its prior written consent.
(d) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties Company and the Guarantors on the one hand and of the indemnified party or parties Holders and the Initial Purchasers on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company and the Guarantors on the one hand and the Holders and the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder Guarantors, the Holders or the Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company, the Guarantors, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 7 4 were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 74. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 74, an indemnifying party that is a selling Holder no Initial Purchaser shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities Senior Notes or Senior Subordinated Notes, as applicable, sold by such indemnifying party and distributed to the public it were offered to the public exceeds the amount of any damages that which such indemnifying party Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act0000 Xxx) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 74, each personPerson, if any, who controls any an Initial Purchaser or Holder within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as such Initial Purchaser or Holder, and each persondirector of the Company or any Guarantor, and each Person, if any, who controls the Issuers Company or any Guarantor within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as the IssuersCompany and the Guarantors. The Initial Purchasers’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the principal amount of Senior Notes or Senior Subordinated Notes, as applicable, set forth opposite their respective names in Schedule A to the Purchase Agreement, and not joint.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless each Holderthe Underwriter, its directors, officers and employees and each person, if any, who controls any Holder the Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), Disclosure Documents or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading (except as to any amount paid in settlement of, or any expense incurred in investigating, preparing or defending against, any litigation, or any 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, or any such alleged untrue statement or omission, which shall be governed exclusively by (ii) and (iii) below);
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below) any if such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) against any and all expense whatsoever, as incurred (including, subject to Section 7(c8(c) belowhereof, against reasonable expenses (including the reasonable fees and disbursements of counselcounsel chosen by the Underwriter), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder the Underwriter expressly for use in the Registration Statement Offering Memorandum (or any amendment thereto); provided further that the foregoing indemnity agreement is subject to the condition that, insofar as it relates to any untrue statement or omission, or any preliminary prospectus alleged untrue statement or omission, made in the Prospectus (or any amendment or supplement thereto); providedPreliminary Offering Memorandum but eliminated in the Final Offering Memorandum, further, that this such indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior inure to the written confirmation benefit of sale, the most recent Prospectus furnished to it by the Issuers, as Underwriter if a copy of said amended or supplemented, supplemented Final Offering Memorandum was not delivered to the person asserting the claim and such Prospectus, as amended or supplemented, the delivery thereof would have corrected constituted a complete defense to the claim of such untrue statement or omission or alleged untrue statement or omission of a material factperson.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, The Underwriter agrees to indemnify and hold harmless the IssuersCompany, each of its directors, and each person, if any, who controls the Issuers Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Sectionsection, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus Offering Memorandum (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder the Underwriter expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus Offering Memorandum (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure so to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. An indemnifying party may participate at its own expense in the defense of any such action. If it so elects within a reasonable time after receipt of such notice, and the an indemnifying party, if the jointly with any other indemnifying party so electsparties receiving such notice, may, or upon request of the indemnified party, shall may assume the defense of such proceeding, including the employment of action with counsel reasonably satisfactory chosen by it and approved (such approval not to be unreasonably withheld) by the indemnified parties defendant in such action, unless such indemnified parties object to such assumption on the ground that there may be legal defenses available to them which are different from or in addition to those available to such indemnifying party so as to represent create, in the reasonable judgment of the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingparties, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to an actual or potential differing interests between them (in which case counsel designated by conflict of interest. If an indemnifying party assumes the defense of such action, the indemnifying party parties shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the be liable for any fees and expenses of counsel for other the indemnified parties, parties incurred thereafter in connection with such action. In no event shall the indemnifying party shall parties be obligated to pay only the liable for fees and expenses associated with of more than one attorney or law firm counsel (in addition to any local counsel) separate from their own counsel for the all indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest parties in connection with any one action or separate and different defenses among but similar or related actions in the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability same jurisdiction arising out of such litigation, investigation, proceeding the same general allegations or claim, 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 partycircumstances.
(d) If In order to provide for just and equitable contribution in circumstances in which the indemnification indemnity agreement provided for in this Section 7 8(a) or (b) is for any reason unavailable held to or insufficient to hold harmless an be unenforceable by the indemnified party parties although applicable in respect of any lossesaccordance with its terms, liabilities, claims, damages or expenses referred to therein, then each indemnifying party the Company and the Underwriter shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses of the nature contemplated by said indemnity agreement incurred by such indemnified partythe Company and the Underwriter, as incurred, (i) in such proportions as is appropriate to reflect the relative benefits received by each party from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party or parties Company on the one hand and of the indemnified party or parties Underwriter on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of benefits received by the Issuers Company on the one hand and the Holders Underwriter on the other hand shall be deemed to be in the same proportion that the total net proceeds from the sale of the Securities (before deducting expenses) received by the Company bear to the underwriting discount received by the Underwriter in respect thereof. The relative fault of the Company on the one hand and the Underwriter on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder Underwriter and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company and the Underwriter agree that it would not be just and equitable if contribution pursuant to this Section 7 8(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 78(d). The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 8(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 78(d), an indemnifying party that is a selling Holder the Underwriter shall not be required to indemnify or contribute any amount in excess of the amount by which the total offering price at which the Registrable Securities purchased by or through it were sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party which the Underwriter has otherwise been required to pay by reason of any such untrue actual or alleged untrue statement statements in or omission or alleged omission.
(h) No omissions from the Disclosure Documents. Notwithstanding the foregoing, no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 78(d), each director, officer and employee of the Underwriter and each person, if any, who controls any Holder the Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holderthe Underwriter, and each director of the Company and each person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersCompany.
Appears in 1 contract
Samples: Private Placement Purchase Agreement (Genentech Inc)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) belowhereof) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c6(c) belowhereof, against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by the Initial Purchaser or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls the Initial Purchaser or any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the if a Notice Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement of a material fact or omission would have included the omitted or allegedly omitted statement of a material fact.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and each person, if any, who controls the Company or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnity agreement. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if the indemnifying party is obligated to pay be liable for (a) the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law separate firm (in addition to any local counsel) for the indemnified partiesInitial Purchaser, Holders of Registrable Securities, and all persons, if any, who control such indemnified party the Initial Purchaser and Holders of Registrable Securities within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, unless there exists a conflict (b) the fees and expenses of interest or more than one xxxxxxxx xxxx (xx xxxxxxxx xx any local counsel) for the Company, its directors, and each person, if any, who controls the Company within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Initial Purchaser, Holders of Registrable Securities, and different defenses among control persons of the indemnified partiesInitial Purchaser and Holders of Registrable Securities, such firm shall be designated in writing by the Initial Purchaser. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability 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 the second and third sentences of this paragraph, the 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 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party holder of Registrable Securities or by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party holder of Registrable Securities or the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Anixter International Inc)
Indemnification; Contribution. (a) Indemnification by the Company. The Issuers agree, jointly and severally, Company agrees to indemnify ------------------------------ and hold harmless each Holder, its directors, officers Holder and each personPerson, if any, who controls any each Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment thereto)) pursuant to which the Holder's Registrable Securities were registered under the Securities Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), including all documents incorporated therein by reference, 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency agency, body or bodythird party, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below) any if such settlement is effected with the prior written consent of the IssuersCompany which shall not be unreasonably withheld; and
(iii) subject to Section 7(c) below, against reasonable expenses any and all expense (including the reasonable fees and disbursements of counsel), as reasonably incurred in investigating, preparing or defending against any litigation, or any 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 the extent that any such expense is not paid under subparagraph (i) or (ii) above; . provided, however, that the indemnity provided pursuant to this indemnity agreement shall Section 8(a) -------- ------- does not apply with respect to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such the Holder expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, and each person, if any, who controls the Issuers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the any Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by the Initial Purchaser or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls the Initial Purchaser or any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and each person, if any, who controls the Company or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party (i) shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingaction; provided, any indemnified party shall have the right however, that counsel to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent (except with the consent of the indemnified party), provided that, if ) also be counsel to the indemnified party. In no event shall the indemnifying party is obligated to pay the parties be liable for fees and expenses of more than one counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed holder of Registrable Securities or sold in the Offering pursuant to the public were offered to Purchase Agreement by the public Initial Purchaser, as the case may be, and exceeds the amount of any damages that such indemnifying party holder of Registrable Securities or the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Purchaser and each Holder, its directors, officers Holder of Registrable Securities and each person, if any, who controls the Purchaser or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claimclaim or damage, damage and related expenseas incurred, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claimclaim or damage, damage and related expenseas incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement the Company shall not apply to be liable in any such case for or in respect of any loss, liability, claim, damage or expense to the extent arising out of or based upon any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of Purchaser or such Holder or any of Registrable Securities and each person, if any, who controls the Purchaser or any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, provided further, that this indemnity agreement the Company shall not apply to be liable in any such case for or in respect of any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the if Notice Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration Statement in which a Holder Holder, including, without limitation, the Purchaser, of Registrable Securities is participating in and participating, by furnishing information relating to such Holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agreeHolder agrees, severally and not jointly, to indemnify and hold harmless the Issuers, Purchaser and each person, if any, who controls the Issuers Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, its directors, each of its officers who signed such Registration Statement, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection subsections (aa)(i), (ii) and (iii) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any of Registrable Securities and each person, if any, who controls any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.
Appears in 1 contract
Samples: Registration Rights Agreement (Diamond Offshore Drilling Inc)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless each HolderInitial Purchaser, its directors, officers each Holder and each person, if any, who controls any Initial Purchaser or any Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment or supplement thereto)) pursuant to which Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, ; provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of such Holder any Initial Purchasers or any person, if any, who controls any such Holder expressly for use in the a Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Each Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statementseverally, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the IssuersCompany, the Initial Purchasers, the other selling Holders, and each of their respective directors and officers, and each person, if any, who controls the Issuers Company, the Initial Purchasers or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 6(a) of this Sectionhereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in conformity with written information with respect to such Holder furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Shelf Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure so to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, shall assume the defense of such proceeding, including the employment of ) also be counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others party. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which that resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders and the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company, the Holders or by the Holder Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling 6 neither the Initial Purchasers nor any Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by Holder or underwritten by such indemnifying party Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party Holder or Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 7, 15 each person, if any, who controls the Initial Purchasers or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Initial Purchaser or Holder, and each director of the Company, and each person, if any, who controls the Issuers Company within the meaning of Section 15 20 of the Securities Act or Section 20 15 of the Exchange Act shall have the same rights to contribution as the IssuersCompany.
Appears in 1 contract
Samples: Registration Rights Agreement (Freeport McMoran Copper & Gold Inc)
Indemnification; Contribution. (a) Indemnification by the Company. The Issuers agree, jointly and severally, Company agrees to indemnify and ------------------------------ hold harmless each Holder, NWI Group and its directorspartners, officers and directors and each personPerson, if any, who controls any Holder NWI Group within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, arising as incurred, to which NWI Group, or any partner, officer, director or controlling Person may become subject under the Securities Act or otherwise (A) that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (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 arising misleading, (C) that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Prospectus (Demand Registration Statement or any amendment or supplement thereto), or the omission or alleged omission therefrom to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (D) that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in any Demand 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or any omission or alleged omission, provided that (subject to Section 7(c) below) any if such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to the limitations set forth in Section 7(c) below10(c), against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any 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 or alleged omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that the indemnity provided pursuant to this indemnity agreement Section 10(a) -------- ------- shall not apply with respect to any loss, liability, claim, damage or expense to the extent arising that arise out of or are based upon any untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder NWI Group (i) expressly for use in the Shelf Registration Statement (or any amendment thereto), or any preliminary prospectus or the Shelf Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Demand Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, and each person, if any, who controls the Issuers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Demand Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, thereto or (ii) the named parties pursuant to any such proceeding (including representation, warranty or other statement contained in any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act Contribution Agreements or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent admission amendment to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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 partyPartnership Agreement.
(d) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.
Appears in 1 contract
Samples: Registration Rights and Lock Up Agreement (Weeks Corp)
Indemnification; Contribution. (a) The Each of the Issuers agree, and the Guarantors jointly and severally, severally agree to indemnify and hold harmless each Initial Purchaser, each Holder, its directorseach Participating Broker-Dealer, officers each Person who participates as an underwriter (any such Person being an “Underwriter”) and each personPerson, if any, who controls any Holder or Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment or supplement thereto)) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), ) or “issuer free writing prospectus” as defined in Rule 433 under the 1933 Act (“Issuer Free Writing Prospectus”) 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, ; provided that (subject to Section 7(c4(d) below) any such settlement is effected with the prior written consent of the Issuers; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers by or on behalf of such an Initial Purchaser, Holder or any person, if any, who controls any such Holder Underwriter expressly for use in the a Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Each Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statementseverally, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the Issuers, the Guarantors, each Initial Purchaser, each Underwriter and the other selling Holders, and each personof their respective directors, officers, employees, representatives and agents, and each Person, if any, who controls the Issuers Issuers, the Guarantors, the Initial Purchasers, any Underwriter or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 4(a) of this Sectionhereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus in reliance upon and in conformity with written information with respect to such Holder furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Shelf Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto)) or any Issuer Free Writing Prospectus; provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure so to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, shall assume the defense of such proceeding, including the employment of ) also be counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others party. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 4 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties Issuers and the Guarantors on the one hand and of the indemnified party or parties Holders on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers and the Guarantors on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Issuers, the Guarantors or by the Holder Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Issuers, the Guarantors and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 7 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 does not take account of the equitable considerations referred to above in this Section 74. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 74, an indemnifying party that is a selling no Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Initial Securities sold by such indemnifying party and distributed to the public it were offered to the public exceeds the amount of any damages that which such indemnifying party Holder has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act0000 Xxx) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 74, each personPerson, if any, who controls any a Holder within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as such Holder, and each persondirector of the Issuers, and each Person, if any, who controls the Issuers within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as the Issuers.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless each Holder, its directors, officers Holder and each personPerson, if any, who controls any Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Shelf Registration Statement (or any amendment thereto)) pursuant to which Registrable Securities were registered under the Securities Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the any 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below) any if such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any Holder), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall does not apply to any loss, liability, claim, damage damage, liability or expense to the extent arising it arises out of any an untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the a Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, and each person, if any, who controls the Issuers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment foregoing indemnity with respect to any litigation, untrue statement contained in or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or omission from a preliminary prospectus shall not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, and (II) does not include a statement as inure to or an admission of fault, culpability or a failure to act by or on behalf the benefit of any indemnified party.
Holder (d) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by the Initial Purchaser or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls the Initial Purchaser or any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers in writing Company expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and each person, if any, who controls the Company or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information furnished to the Company by the Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingaction; provided, any indemnified party shall have the right however, that counsel to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent (except with the consent of the indemnified party), provided that, if ) also be counsel to the indemnified party. In no event shall the indemnifying party is obligated to pay the parties be liable for fees and expenses of more than one counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request for fees and expenses prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party holder of Registrable Securities or unwritten by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has holder of Registrable Securities or the Initial Purchaser have otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Osi Pharmaceuticals Inc)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers Holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c6(c) below, against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; providedPROVIDED, howeverHOWEVER, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of the Initial Purchaser, such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls the Initial Purchaser or any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); providedPROVIDED, furtherFURTHER, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received if a Deferral Notice, Notice was given to such Notice Holder or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material factfact and the delivery thereof was required by law.
(b) In connection with any Shelf Registration Statement in which a Holder Holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the Holders of Registrable Securities, and each person, if any, who controls the Company or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section 6, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the these indemnity provisions. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain a separate firm as its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if be liable for (A) the indemnifying party is obligated to pay the reasonable fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law firm (in addition to any local counsel) for the indemnified partiesInitial Purchaser, Holders of Registrable Securities, and all persons, if any, who control such indemnified party the Initial Purchaser or Holders of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict Act or (B) the reasonable fees and expenses of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for more than one firm (in addition to any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, but if settled with such consent or if there be a final judgment local counsel) for the plaintiffCompany, its directors, and each person, if any, who controls the indemnifying party agrees to indemnify Company within the indemnified party from meaning of either such Section, and against any loss or liability that all such reasonable fees and expenses shall be reimbursed as they are incurred. In the event a separate firm is retained for the Initial Purchaser, Holders of Registrable Securities, and control persons of the Initial Purchaser and Holders of Registrable Securities, such firm shall be designated in writing by reason the Initial Purchaser. In the event a separate firm is retained for the Company, and such directors, officers and control persons of the Company, such settlement or judgmentfirm shall be designated in writing by the Company. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than sixty (60) days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least forty-five (45) days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement; PROVIDED, that an indemnifying party shall not be liable for any such settlement effected without its consent if such indemnifying party (1) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (2) provides written notice to the indemnified party describing any unpaid balance it believes is unreasonable and the reasons therefor, in each case prior to the date of such settlement.
(e) If the indemnification provided for in to which an indemnified party is entitled under this Section 7 6 is for any reason unavailable to or insufficient although applicable in accordance with its terms to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any out-of-pocket legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling neither the Holder of any Registrable Securities nor the Initial Purchaser shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party Holder of Registrable Securities or by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party Holder of Registrable Securities or the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such Holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Avatar Holdings Inc)
Indemnification; Contribution. (a) The Issuers Companies agree, ----------------------------- jointly and severally, to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers Holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompanies; and
(iii) subject to Section 7(c6(c) below, against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, -------- ------- liability, claim, damage or expense to the 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 the Issuers Companies by or on behalf of the Initial Purchaser, such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls the Initial Purchaser or any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after if the Notice Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder Holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder of Registrable Securities to the Issuers Companies in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Companies, and each person, if any, who controls either of the Companies within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Companies by or on behalf of such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnity agreement. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if the indemnifying party is obligated to pay be liable for (a) the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law separate firm (in addition to any local counsel) for the indemnified partiesInitial Purchaser, Holders of Registrable Securities, and all persons, if any, who control such indemnified party the Initial Purchaser or Holders of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict (b) the fees and expenses of interest or more than one separate firm (in addition to any local counsel) for the Companies, their respective directors, and different defenses among each person, if any, who controls either of the indemnified partiesCompanies within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Initial Purchaser, Holders of Registrable Securities, and control persons of the Initial Purchaser and Holders of Registrable Securities, such firm shall be designated in writing by the Initial Purchaser. In the case of any such separate firm for the Companies, and such directors, officers and control persons of either of the Companies, such firm shall be designated in writing by the Companies. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability 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 the second and third sentences of this paragraph, the 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 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Companies on the one hand and the Holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Companies or by the Holder of the Registrable Securities or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling neither the Holder of any Registrable Securities nor the Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party Holder of Registrable Securities or by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party Holder of Registrable Securities or the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such Holder, and each person, if any, who controls either of the Companies within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Companies.
Appears in 1 contract
Samples: Registration Rights Agreement (Tyco International LTD /Ber/)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c7(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) below, against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of Initial Purchaser or such Holder or any holder of Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls the Initial Purchaser or any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, provided further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after if the indemnified party is a Notice Holder that received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any holder of Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and each person, if any, who controls the Company or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingaction; provided, any indemnified party shall have the right however, that counsel to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent (except with the consent of the indemnified party), provided that, if ) also be counsel to the indemnified party. In no event shall the indemnifying party is obligated to pay the parties be liable for fees and expenses of more than one counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 7(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 7(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 77(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 7(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party holder of Registrable Securities or underwritten by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party holder of Registrable Securities or the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 77(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Franklin Resources Inc)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchasers and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchasers or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c6(c) below, against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of the Initial Purchasers, such Holder holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls the Initial Purchasers or any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received if a Deferral NoticeNotice was given to such Notice Holder in accordance with Section 8(b), or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material factfact and the delivery thereof was required by law and would have constituted a complete defense to the claim in respect of such untrue statement or omission or alleged untrue statement or omission.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Initial Purchasers, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchasers and each person, if any, who controls the Issuers Initial Purchasers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchasers agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and each person, if any, who controls the Company or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by or on behalf of by the Initial Purchasers expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnity agreement. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if be liable for (a) the indemnifying party is obligated to pay the reasonable fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law separate firm (in addition to any local counsel) for the indemnified partiesInitial Purchasers, Holders of Registrable Securities, and all persons, if any, who control such indemnified party the Initial Purchasers or Holders of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict or (b) the reasonable fees and expenses of interest or more than one separate firm (in addition to any local counsel) for the Company, its directors, and different defenses among each person, if any, who controls the indemnified partiesCompany within the meaning of either such Section, and that all such reasonable fees and expenses shall be reimbursed as they are incurred. The indemnifying party shall not be liable for any settlement In the case of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, but if settled with such consent or if there be a final judgment separate firm for the plaintiffInitial Purchasers, Holders of Registrable Securities, and control persons of the indemnifying party agrees to indemnify Initial Purchasers and Holders of Registrable Securities, such firm shall be designated in writing by the indemnified party from Initial Purchasers. In the case of any such separate firm for the Company, and against any loss or liability such directors, officers and control persons of the Company, such firm shall be designated in writing by reason of such settlement or judgmentthe Company. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement; provided, that an indemnifying party shall not be liable for any such settlement effected without its consent if such indemnifying party (1) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (2) provides written notice to the indemnified party describing any unpaid balance it believes is unreasonable and the reasons therefor, in each case prior to the date of such settlement.
(e) If the indemnification provided for in to which an indemnified party is entitled under this Section 7 6 is for any reason unavailable to or insufficient although applicable in accordance with its terms to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Initial Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any out-of-pocket legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Initial Purchasers, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party holder of Registrable Securities or by the Initial Purchasers, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party holder of Registrable Securities or the Initial Purchasers has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchasers or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchasers or such holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers Holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by the Initial Purchaser), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of the Initial Purchaser, such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls the Initial Purchaser or any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received if a Deferral NoticeNotice was given to such Notice Holder in accordance with Section 8(b), or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder Holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the Holders of Registrable Securities, and each person, if any, who controls the Company or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnity agreement. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if the indemnifying party is obligated to pay be liable for (a) the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law separate firm (in addition to any local counsel) ), whose fees must be reasonable, for the indemnified partiesInitial Purchaser, Holders of Registrable Securities, and all persons, if any, who control such indemnified party the Initial Purchaser or Holders of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict collectively (b) the fees and expenses of interest or more than one separate firm (in addition to any local counsel), whose fees must be reasonable, for the Company and different defenses among each person, if any, who controls the indemnified partiesCompany within the meaning of either such Section, and that all fees and expenses payable under (a) and (b) above shall be reimbursed as they are incurred. In the case of any such separate firm for the Initial Purchaser, Holders of Registrable Securities, and control persons of the Initial Purchaser and Holders of Registrable Securities, such firm shall be designated in writing by the Initial Purchaser. In the case of any such separate firm for the Company and control persons of the Company, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, but if settled with such consent or if there be a final non-appealable judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement; provided, that an indemnifying party shall not be liable for any such settlement effected without its consent if such indemnifying party (1) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (2) provides written notice to the indemnified party substantiating the unpaid balance as unreasonable, in each case prior to the date of such settlement.
(e) If the indemnification provided for in to which an indemnified party is entitled under this Section 7 6 is for any reason unavailable to or insufficient although applicable in accordance with its terms to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder of the Registrable Securities or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any out-of-pocket legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling neither the Holder of any Registrable Securities nor the Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party Holder of Registrable Securities or by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party Holder of Registrable Securities or the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such Holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company, as the case may be.
Appears in 1 contract
Indemnification; Contribution. (a) 4.1 The Issuers agree, jointly and severally, the Guarantors agree to indemnify and hold harmless the Dealer Managers, each Holder, its each Participating Broker-Dealer, each Person who participates as an underwriter in an offering of Shelf Registrable Securities (any such Person being an Underwriter), each of their respective directors, officers and affiliates and each personPerson, if any, who controls any Holder or Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act as follows:
(ia) against any and all loss, liability, claim, damage and related expense, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment or supplement thereto)) pursuant to which Exchange Securities or Shelf Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), ) or any Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the 1933 Act 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;
(iib) against any and all loss, liability, claim, damage and related expense, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, ; provided that (subject to Section 7(c) Clause 4.3 below) any such settlement is effected with the prior written consent of the Issuersindemnifying party, which shall not be unreasonably withheld; and
(iiic) subject to Section 7(c) belowagainst any and all expense, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party as provided therein), reasonably incurred in investigating, preparing investigating or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (ia) or (iib) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers by or on behalf of such the Holder or any person, if any, who controls any such Holder Underwriter expressly for use in the a Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that ) or any Free Writing Prospectus. The indemnity provided for in this indemnity agreement shall not apply Clause 4 will be in addition to any loss, liability, claim, damage liability that the Issuers or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior Guarantors may otherwise have to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material factindemnified parties.
(b) In connection with any Shelf Registration in which a 4.2 Each Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statementseverally, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the IssuersIssuers and the Guarantors, the Dealer Managers, each Underwriter and the other selling Holders, and each personof their respective directors, officers and affiliates, and each Person, if any, who controls the Issuers Issuers, the Dealer Managers, any Underwriter or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this SectionClause 4.1 hereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) or any Free Writing Prospectus in reliance upon and in conformity with written information with respect to such Holder furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Shelf Registration Statement (or any amendment theretothereto or any Free Writing Prospectus) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) In case 4.3 Promptly after receipt by an indemnified party under this Clause 4 of notice of the commencement of any proceeding (including any governmental investigation) shall be instituted involving any person action for which such indemnified party is entitled to indemnification under this Clause 4, such indemnified party will, if a claim in respect of which indemnity may thereof is to be sought pursuant to Section 7(a) or 7(b) hereofmade against the indemnifying party under this Clause 4, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (indemnifying party of the “indemnifying party”) commencement thereof in writing, ; but failure the omission to so notify shall not relieve such the indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall (a) will not relieve it from any liability which under Clause 4.1 or 4.2 above unless and to the extent such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (b) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in Clause 4.1 or 4.2 above. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party; provided, however, that if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have otherwise than on account of this indemnity, and been advised by counsel that there may be one or more legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, if or (iii) the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others within a reasonable time after receipt by the indemnifying party may designate in such proceeding and shall pay of notice of the fees and disbursements institution of such counsel related action, then, in each such case, the indemnifying party shall not have the right to direct the defense of such proceeding. In any action on behalf of such proceeding, any indemnified party or parties and such indemnified party or parties shall have the right to retain its own counsel, but the fees and expenses of select separate counsel to defend such counsel shall be at the expense action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified party under this Clause 4 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnifying party and the indemnified party shall have mutually agreed employed separate counsel in accordance with the proviso to the retention of immediately preceding sentence (it being understood, however, that in connection with such counsel, or (ii) action the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) in any settlement one action or separate but substantially similar actions in the same jurisdiction arising out of any proceeding effected without its written consentthe same general allegations or circumstances, which may not be unreasonably withheld designated by the Dealer Managers, Holders or delayedUnderwriters in the case of Clause 4.1 or the Issuers or Guarantors in the case of Clause 4.2, but if settled with representing the indemnified parties under such consent clause, who are parties to such action or if there be a final judgment actions) or (ii) the indemnifying party has authorized in writing the employment of counsel for the plaintiffindemnified party at the expense of the indemnifying party. All fees and expenses reimbursed pursuant to this Clause 4.3 shall be reimbursed as they are incurred. After such notice from the indemnifying party to such indemnified party, the indemnifying party agrees to indemnify will not be liable for the costs and expenses of any settlement of such action effected by such indemnified party without the prior written consent of the indemnifying party (which consent shall not be unreasonably withheld), unless such indemnified party waived in writing its rights under this Clause 4, in which case the indemnified party from and against any loss or liability by reason of may effect such a settlement or judgmentwithout such consent. No indemnifying party shall, without the prior written consent of each the indemnified party, settle effect any settlement or compromise or consent to the entry of any judgment with respect to any litigation, pending or any investigation or threatened proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each any indemnified party is an actual or potential party thereto)could have been a party, or indemnity could have been sought hereunder by any indemnified party, unless such settlement, compromise or consent settlement (IA) includes an unconditional written release of each the indemnified party party, in form and substance reasonably satisfactory to the indemnified party, from all liability arising out on claims that are the subject matter of such litigation, investigation, proceeding or claim, and (IIB) does not include a any statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) 4.4 If the indemnification provided for in this Section 7 Clause 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party (other than by reason of the first sentence of Clause 4.3) in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties Issuers on the one hand and of the indemnified party or parties Holders and the Dealer Managers on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers on the one hand and the Holders and the Dealer Managers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Issuers, the Holders or by the Holder Dealer Managers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Issuers, the Holders and the Dealer Managers agree that it would not be just and equitable if contribution pursuant to this Section 7 Clause 4 were determined by pro rata allocation (even if the Dealer Managers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7Clause 4. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 Clause 4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 7Clause 4, an indemnifying party that is a selling Holder in no event shall not any Dealer Manager be required to indemnify or contribute any amount in excess of the amount by which of the total price at which fees received by it under the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public Dealer Manager Agreement exceeds the amount of any damages that which such indemnifying party Dealer Manager has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act0000 Xxx) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 7Clause 4, each personPerson, if any, who controls any a Dealer Manager or Holder within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act and each of their respective directors, officers, agents, employees and affiliates shall have the same rights to contribution as such Dealer Manager or Holder, and each personPerson, if any, who controls the Issuers an Issuer within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act and each of the Issuers’ directors, officers, agents, employees and affiliates shall have the same rights to contribution as the Issuers. The Dealer Managers’ respective obligations to contribute pursuant to this Clause 4 are several in proportion to the respective fees paid to such Dealer Managers under the Dealer Manager Agreement.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly Company and severally, the Guarantor agree to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers Holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c6(c) below, against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of the Initial Purchaser, such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls the Initial Purchaser or any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, provided further that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received if a Deferral Notice, Notice was given to such Notice Holder or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material factfact and the delivery thereof was required by law.
(b) In connection with any Shelf Registration Statement in which a Holder Holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, the Guarantor and each person, if any, who controls the Company or the Guarantor within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company or the Guarantor by or on behalf of such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the Guarantor, the Holders of Registrable Securities, and each person, if any, who controls the Company, the Guarantor or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section 6, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the these indemnity provisions. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain a separate firm as its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if be liable for (A) the indemnifying party is obligated to pay the reasonable fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law firm (in addition to any local counsel) for the indemnified partiesInitial Purchaser, Holders of Registrable Securities, and all persons, if any, who control such indemnified party the Initial Purchaser or Holders of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict Act or (B) the reasonable fees and expenses of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for more than one firm (in addition to any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, but if settled with such consent or if there be a final judgment local counsel) for the plaintiffCompany, the indemnifying party agrees to indemnify Guarantor, their respective directors, and each person, if any, who controls the indemnified party from Company or the Guarantor within the meaning of either such Section, and against any loss or liability that all such reasonable fees and expenses shall be reimbursed as they are incurred. In the event a separate firm is retained for the Initial Purchaser, Holders of Registrable Securities, and control persons of the Initial Purchaser and Holders of Registrable Securities, such firm shall be designated in writing by reason the Initial Purchaser. In the event a separate firm is retained for the Company and the Guarantor, and such directors, officers and control persons of the Company and the Guarantor, such settlement or judgmentfirm shall be designated in writing by the Company and the Guarantor. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than sixty (60) days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least forty-five (45) days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement; provided that an indemnifying party shall not be liable for any such settlement effected without its consent if such indemnifying party (1) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (2) provides written notice to the indemnified party describing any unpaid balance it believes is unreasonable and the reasons therefor, in each case prior to the date of such settlement.
(e) If the indemnification provided for in to which an indemnified party is entitled under this Section 7 6 is for any reason unavailable to or insufficient although applicable in accordance with its terms to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company and/or the Guarantor on the one hand and the Holders holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company and/or the Guarantor or by the Holder holder of the Registrable Securities or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any out-of-pocket legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling neither the Holder of any Registrable Securities nor the Initial Purchaser shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party Holder of Registrable Securities or by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party Holder of Registrable Securities or the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such holder, and each person, if any, who controls the Company or the Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Northwest Airlines Inc /Mn)
Indemnification; Contribution. (a) 4.1 The Issuers agree, jointly Issuer and severally, the Guarantors agree to indemnify and hold harmless the Dealer Managers, each Holder, its each Participating Broker-Dealer, each Person who participates as an underwriter in an offering of Shelf Registrable Securities (any such Person being an Underwriter), each of their respective directors, officers and affiliates and each personPerson, if any, who controls any Holder or Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act as follows:
(ia) against any and all loss, liability, claim, damage and related expense, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment or supplement thereto)) pursuant to which Exchange Securities or Shelf Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), ) or any Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the 1933 Act 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;
(iib) against any and all loss, liability, claim, damage and related expense, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, ; provided that (subject to Section 7(c) Clause 4.3 below) any such settlement is effected with the prior written consent of the Issuersindemnifying party, which shall not be unreasonably withheld; and
(iiic) subject to Section 7(c) belowagainst any and all expense, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party as provided therein), reasonably incurred in investigating, preparing investigating or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (ia) or (iib) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Issuer by or on behalf of such the Holder or any person, if any, who controls any such Holder Underwriter expressly for use in the a Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that ) or any Free Writing Prospectus. The indemnity provided for in this indemnity agreement shall not apply Clause 4 will be in addition to any loss, liability, claim, damage liability that the Issuer or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior Guarantors may otherwise have to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material factindemnified parties.
(b) In connection with any Shelf Registration in which a 4.2 Each Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statementseverally, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the IssuersIssuer and the Guarantors, the Dealer Managers, each Underwriter and the other selling Holders, and each personof their respective directors, officers and affiliates, and each Person, if any, who controls the Issuers Issuer, the Dealer Managers, any Underwriter or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this SectionClause 4.1 hereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) or any Free Writing Prospectus in reliance upon and in conformity with written information with respect to such Holder furnished to the Issuers Issuer by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Shelf Registration Statement (or any amendment theretothereto or any Free Writing Prospectus) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) In case 4.3 Promptly after receipt by an indemnified party under this Clause 4 of notice of the commencement of any proceeding (including any governmental investigation) shall be instituted involving any person action for which such indemnified party is entitled to indemnification under this Clause 4, such indemnified party will, if a claim in respect of which indemnity may thereof is to be sought pursuant to Section 7(a) or 7(b) hereofmade against the indemnifying party under this Clause 4, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (indemnifying party of the “indemnifying party”) commencement thereof in writing, ; but failure the omission to so notify shall not relieve such the indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall (a) will not relieve it from any liability which under Clause 4.1 or 4.2 above unless and to the extent such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (b) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in Clause 4.1 or 4.2 above. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party; provided, however, that if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have otherwise than on account of this indemnity, and been advised by counsel that there may be one or more legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, if or (iii) the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others within a reasonable time after receipt by the indemnifying party may designate in such proceeding and shall pay of notice of the fees and disbursements institution of such counsel related action, then, in each such case, the indemnifying party shall not have the right to direct the defense of such proceeding. In any action on behalf of such proceeding, any indemnified party or parties and such indemnified party or parties shall have the right to retain its own counsel, but the fees and expenses of select separate counsel to defend such counsel shall be at the expense action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified party under this Clause 4 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnifying party and the indemnified party shall have mutually agreed employed separate counsel in accordance with the proviso to the retention of immediately preceding sentence (it being understood, however, that in connection with such counsel, or (ii) action the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) in any settlement one action or separate but substantially similar actions in the same jurisdiction arising out of any proceeding effected without its written consentthe same general allegations or circumstances, which may not be unreasonably withheld designated by the Dealer Managers, Holders or delayedUnderwriters in the case of Clause 4.1 or the Issuer or Guarantors in the case of Clause 4.2, but if settled with representing the indemnified parties under such consent clause, who are parties to such action or if there be a final judgment actions) or (ii) the indemnifying party has authorized in writing the employment of counsel for the plaintiffindemnified party at the expense of the indemnifying party. All fees and expenses reimbursed pursuant to this Clause 4.3 shall be reimbursed as they are incurred. After such notice from the indemnifying party to such indemnified party, the indemnifying party agrees to indemnify will not be liable for the costs and expenses of any settlement of such action effected by such indemnified party without the prior written consent of the indemnifying party (which consent shall not be unreasonably withheld), unless such indemnified party waived in writing its rights under this Clause 4, in which case the indemnified party from and against any loss or liability by reason of may effect such a settlement or judgmentwithout such consent. No indemnifying party shall, without the prior written consent of each the indemnified party, settle effect any settlement or compromise or consent to the entry of any judgment with respect to any litigation, pending or any investigation or threatened proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each any indemnified party is an actual or potential party thereto)could have been a party, or indemnity could have been sought hereunder by any indemnified party, unless such settlement, compromise or consent settlement (IA) includes an unconditional written release of each the indemnified party party, in form and substance reasonably satisfactory to the indemnified party, from all liability arising out on claims that are the subject matter of such litigation, investigation, proceeding or claim, and (IIB) does not include a any statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) 4.4 If the indemnification provided for in this Section 7 Clause 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party (other than by reason of the first sentence of Clause 4.3) in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties Issuer on the one hand and of the indemnified party or parties Holders and the Dealer Managers on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Issuer on the one hand and the Holders and the Dealer Managers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Issuer, the Holders or by the Holder Dealer Managers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Issuer, the Holders and the Dealer Managers agree that it would not be just and equitable if contribution pursuant to this Section 7 Clause 4 were determined by pro rata allocation (even if the Dealer Managers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7Clause 4. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 Clause 4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 7Clause 4, an indemnifying party that is a selling Holder in no event shall not any Dealer Manager be required to indemnify or contribute any amount in excess of the amount by which of the total price at which fees received by it under the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public Dealer Manager Agreement exceeds the amount of any damages that which such indemnifying party Dealer Manager has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act0000 Xxx) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 7Clause 4, each personPerson, if any, who controls any a Dealer Manager or Holder within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act and each of their respective directors, officers, agents, employees and affiliates shall have the same rights to contribution as such Dealer Manager or Holder, and each personPerson, if any, who controls the Issuers Issuer within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act and each of the Issuer’s directors, officers, agents, employees and affiliates shall have the same rights to contribution as the IssuersIssuer. The Dealer Managers’ respective obligations to contribute pursuant to this Clause 4 are several in proportion to the respective fees paid to such Dealer Managers under the Dealer Manager Agreement.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchasers and each Holder, its directors, officers Holder of Registrable Securities and each person, if any, who controls the Initial Purchasers or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omissionomission of a material fact, or any such alleged untrue statement or omissionomission of a material fact, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omissionomission of a material fact, or any such alleged untrue statement or omissionomission of a material fact, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 information, including, without limitation, the Notice and Questionnaire furnished to the Issuers Company by or on behalf of the Initial Purchasers or such Holder or any person, if any, who controls any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus ) or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration Statement in which a Holder of Registrable Securities, including, without limitation, the Initial Purchasers, is participating in and is furnishing information relating to such Holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the IssuersCompany, the Initial Purchasers and the other selling Holders and each person, if any, who controls the Issuers Company, the Initial Purchasers and the other selling Holders within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to any untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus ) or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement or Prospectus.
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure so to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, shall assume the defense of such proceeding, including the employment of ) also be counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others party. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties Company on the one hand and of the indemnified party or parties Holders and the Initial Purchasers on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders and the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company, the Holders or by the Holder Initial Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 7 6 were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 6 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder no Initial Purchaser shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public it were offered to the public exceeds the amount of any damages that which such indemnifying party Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76, each personPerson, if any, who controls any an Initial Purchaser or Holder within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as such Initial Purchaser or Holder, and each persondirector of the Company, and each Person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as the IssuersCompany. The Initial Purchasers' respective obligations to contribute pursuant to this Section 6 are several in proportion to the principal amount of Securities set forth opposite their respective names in Schedule A to the Purchase Agreement and not joint.
Appears in 1 contract
Samples: Registration Rights Agreement (Titan International Inc)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser, each Holder, its directorseach Participating Broker-Dealer, officers each Person who participates as an underwriter (any such Person being an "Underwriter") and each personPerson, if any, who controls any Holder or Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and related expenseor liability, joint or several, and any action in respect thereof, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment or supplement thereto)) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or arising out of or based upon the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or 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;; and
(ii) against any and all loss, liability, claim, damage and related expense, to the extent of the aggregate amount paid in settlement of any litigation, legal or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below) any such settlement is effected with the prior written consent of the Issuers; and
(iii) subject to Section 7(c) below, against reasonable other expenses (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing investigating or defending or preparing to defend against any litigationsuch loss, claim. damage, liability or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) aboveaction; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of such the Holder or any person, if any, who controls any such Holder Underwriter expressly for use in the a Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this . The foregoing indemnity agreement shall not apply is in addition to any loss, liability, claim, damage or expense liability the Company may have to each person indemnified pursuant to this paragraph (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material facta).
(b) In connection with any Shelf Registration in which a Each Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statementseverally, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the IssuersCompany, the Initial Purchaser, each Underwriter and the other selling Holders, and each personof their respective directors and officers, and each Person, if any, who controls the Issuers Company, the Initial Purchaser, any Underwriter or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 4(a) of this Sectionhereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in conformity with written information with respect to such Holder furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Shelf Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement. The foregoing indemnity agreement is in addition to any liability such Holder may have to each person indemnified pursuant to this paragraph (b).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure so to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, shall assume the defense of such proceeding, including the employment of ) also be counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others party. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 4 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties Company on the one hand and of the indemnified party or parties Holders and the Initial Purchaser on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders and the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company, the Holders or by the Holder Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company, the Holders and the Initial Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 7 4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 74. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 74, an indemnifying party that is a selling Holder the Initial Purchaser shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public it were offered to the public exceeds the amount of any damages that such indemnifying party which the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act0000 Xxx) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 74, each personPerson, if any, who controls any the Initial Purchaser or Holder within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as the IssuersInitial Purchaser or Holder, and each director of the Company, and each Person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Century Communications Corp)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers Holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment or supplement thereto), including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading, or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above, subject to Section 6(c); provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (including those enumerated in clauses (i), (ii) and (iii) above) to the 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 information, including without limitation the Notice and Questionnaire, furnished to the Issuers by Company from or on behalf of the Initial Purchaser, such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls the Initial Purchaser or any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after if the applicable Notice Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuersprospectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration Statement in which a Holder Holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this SectionSection 6, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to received by the Issuers by Company from or on behalf of such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect . The Initial Purchaser agrees to indemnify and hold harmless the Company, the Holders of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityRegistrable Securities, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all personseach person, if any, who control such indemnified party controls the Company or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.or
Appears in 1 contract
Samples: Registration Rights Agreement (Idec Pharmaceuticals Corp / De)
Indemnification; Contribution. (a) The Issuers agreeEach of the Company and the Guarantors agrees, jointly and severally, to indemnify and hold harmless each Holder, its directors, officers Holder and each personPerson, if any, who controls any Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Shelf Registration Statement (or any amendment thereto)) pursuant to which Registrable Securities were registered under the Securities Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the any 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below) any if such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any Holder), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall does not apply to any loss, liability, claim, damage damage, liability or expense to the extent arising it arises out of any an untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the a Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this . The foregoing indemnity agreement with respect to any untrue statement contained in or any omission from a preliminary prospectus shall not apply inure to the benefit of any Holder (or any Person controlling such Holder) from whom the Person asserting any such loss, liability, claim, damage or expense (1) arising from an offer or sale purchased any of Registrable the Securities occurring during a Deferral Period, after that are the Holder received a Deferral Notice, or (2) subject thereof if the Holder fails to deliver Company shall sustain the burden of proving that such Person was not conveyed a copy of any amendment or supplement thereto at or prior to the written confirmation time of sale, sale of such Securities to such Person and the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement contained in or the omission from such preliminary prospectus was corrected in such amendment or alleged untrue statement or omission of a material factsupplement thereto.
(b) In connection with any Shelf Registration in which a Each Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, agrees to indemnify and hold harmless the IssuersCompany and the Guarantors, their respective directors, officers and each personPerson, if any, who controls the Issuers Company or any Guarantor within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 6(a) of this Sectionhereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give prompt notice to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify shall not relieve such an indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account under this indemnity agreement. An indemnifying party may participate at its own expense in the defense of this indemnitysuch action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, shall assume the defense of such proceeding, including the employment of ) also be counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others party. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such for all indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, parties in connection with any one action or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by separate but similar or related actions in the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party)jurisdiction, provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding the same general allegations or claim, 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 partycircumstances.
(d) If In order to provide for just and equitable contribution in circumstances in which the indemnification indemnity agreement provided for in this Section 7 6 is for any reason unavailable held to or insufficient to hold harmless an be unenforceable by the indemnified party parties although applicable in respect of any lossesaccordance with its terms, liabilitiesthe Company and the Guarantors, claimson the one hand, damages or expenses referred to thereinand the Holders, then each indemnifying party on the other hand, shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses of the nature contemplated by such indemnity agreement incurred by such indemnified partythe Company and the Guarantors, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand hand, and one or more of the indemnified party or parties Holders, on the other hand in connection with the statements or omissions which resulted in such losseshand; provided, liabilitieshowever, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation.
. As between the Company and the Guarantors, on the one hand, and the Holders, on the other hand, such parties shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by such indemnity agreement in such proportion as shall be appropriate to reflect (i) the relative benefits received by the Company and the Guarantors on the one hand and the Holders on the other hand, from the offering of the Exchange Securities or Registrable Securities included in such offering, and (ii) the relative fault of the Company and the Guarantors, on the one hand, and the Holders, on the other hand, with respect to the statements or omissions which resulted in such loss, liability, claim, damage or expense, or action in respect thereof, as well as any other relevant equitable considerations. The Company, the Guarantors and the Holders of the Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 6 were to be determined by pro rata allocation or by any other method of allocation which does not take into account the relevant equitable considerations. For purposes of this Section 76, each personPerson, if any, who controls any a Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each persondirector of the Company or any Guarantor, each officer of the Company or any Guarantor who signed the Registration Statement, and each Person, if any, who controls the Issuers Company or any Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersCompany and the Guarantors.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by the Initial Purchaser or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls the Initial Purchaser or any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.Registration
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and each person, if any, who controls the Company or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingaction; provided, any indemnified party shall have the right however, that counsel to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent (except with the consent of the indemnified party), provided that, if ) also be counsel to the indemnified party. In no event shall the indemnifying party is obligated to pay the parties be liable for fees and expenses of more than one counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified
(d) If at any time an indemnified partyparty shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, settle or compromise or such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the entry date of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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.
(de) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (TJX Companies Inc /De/)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to ----------------------------------------- indemnify and hold harmless the Initial Purchasers and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchasers or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, -------- ------- claim, damage or expense to the 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 the Issuers Company by the Initial Purchasers or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls the Initial Purchasers or any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Initial Purchasers, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchasers and each person, if any, who controls the Issuers Initial Purchasers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). Each of the Initial Purchasers agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and each person, if any, who controls the Company or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Initial Purchasers expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingaction; provided, any indemnified party shall have the right however, that counsel to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent (except with -------- ------- the consent of the indemnified party), provided that, if ) also be counsel to the indemnified party. In no event shall the indemnifying party is obligated to pay the parties be liable for fees and expenses of more than one counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Initial Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Initial Purchasers, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party holder of Registrable Securities or unwritten by the Initial Purchasers, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party holder of Registrable Securities or the Initial Purchasers has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchasers or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchasers or such holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Universal Health Services Inc)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser, each Holder, its directors, officers Holder and each person, if any, who controls the Initial Purchaser or any Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment or supplement thereto)) pursuant to which Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, ; provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by the Initial Purchaser or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the a Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Each Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statementseverally, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the IssuersCompany, the Initial Purchaser, the other selling Holders, and each of their respective directors and officers, and each person, if any, who controls the Issuers any Issuer, the Initial Purchaser or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 6(a) of this Sectionhereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in conformity with written information with respect to such Holder furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Shelf Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure so to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, shall assume the defense of such proceeding, including the employment of ) also be counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others party. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which that resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders and the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company, the Holders or by the Holder Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company, the Holders and the Initial Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling neither the Initial Purchaser nor any Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party Holder or underwritten by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party Holder or Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76, each 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 shall have the same rights to contribution as such Initial Purchaser or Holder, and each director of the Company, and each person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersCompany.
Appears in 1 contract
Samples: Registration Rights Agreement (Freeport McMoran Copper & Gold Inc)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to ----------------------------------------- indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, -------- ------- claim, damage or expense to the 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 the Issuers Company by or on behalf of Initial Purchaser or such Holder or any holder of Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls the Initial Purchaser or any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the if Notice Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuersprospectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any holder of Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and each person, if any, who controls the Company or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the or on behalf of Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingaction; provided, any indemnified party shall have the right -------- however, that counsel to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent (except with the ------- consent of the indemnified party), provided that, if ) also be counsel to the indemnified party. In no event shall the indemnifying party is obligated to pay the parties be liable for fees and expenses of more than one counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party holder of Registrable Securities or unwritten by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party holder of Registrable Securities or the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to ----------------------------- indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers Holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c6(c) below, against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, -------- ------- liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of the Initial Purchaser, such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls the Initial Purchaser or any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after if the Notice Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder Holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information (which also acknowledges the indemnity provisions herein) furnished to the Issuers Company by or on behalf of such Holder of Registrable Securities or any person, if any, who controls any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnity agreement. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if the indemnifying party is obligated to pay be liable for (a) the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law separate firm (in addition to any local counsel) for the indemnified partiesInitial Purchaser, Holders of Registrable Securities, and all persons, if any, who control such indemnified party the Initial Purchaser or Holders of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict (b) the fees and expenses of interest or more than one separate firm (in addition to any local counsel) for the Company, its directors and different defenses among each person, if any, who controls the indemnified partiesCompany within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Initial Purchaser, Holders of Registrable Securities, and control persons of the Initial Purchaser and Holders of Registrable Securities, such firm shall be designated in writing by the Initial Purchaser. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability 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 the second and third sentences of this paragraph, the 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 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel in accordance with Section 6(c) above, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request, if required to do so under Section 6(c) above, prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder of the Registrable Securities or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling neither the Holder of any Registrable Securities nor the Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party Holder of Registrable Securities or by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party Holder of Registrable Securities or the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such Holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Reebok International LTD)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchasers and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchasers or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below6(d)) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subsections (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 relating to the Initial Purchasers furnished to the Issuers Company in writing by the Initial Purchasers or on behalf a Holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any Initial Purchaser or any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder Holder, including, without limitation, the Initial Purchasers, of Registrable Securities is participating participating, in and furnishing information relating to such Holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchasers and each person, if any, who controls the Issuers any Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any of Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchasers agree to indemnify and hold harmless the Company, the Holders of Registrable Securities, and each person, if any, who controls the Company or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Initial Purchasers expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party (i) shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingaction; provided, any indemnified party shall have the right however, that counsel to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent (except with the consent of the indemnified party), provided that, if ) also be counsel to the indemnified party. In no event shall the indemnifying party is obligated to pay the parties be liable for fees and expenses of more than one counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders of the Registrable Securities or the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder of the Registrable Securities or the Initial Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company, the Initial Purchasers and the Holders of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling neither the Holder of any Registrable Securities nor the Initial Purchasers, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities were sold by such indemnifying party and distributed Holder of Registrable Securities pursuant to a Registration Statement or resold by the public were offered to Initial Purchasers as contemplated by the public Purchase Agreement as the case may be, exceeds the amount of any damages that such indemnifying party Holder of Registrable Securities has or the Initial Purchasers have otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls an Initial Purchaser or any Holder within the meaning of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchasers or such Holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers Holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, arising out of as incurred, resulting from any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of resulting from any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c6(c) below, against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of such Holder the Initial Purchaser or any Holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the if a Notice Holder received was given a Deferral Notice, or (2) if the a Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement of a material fact or omission would have included the omitted or allegedly omitted statement of a material fact.
(b) In connection with any Shelf Registration in which a Holder Holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the Holders of Registrable Securities, and each person, if any, who controls the Company or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnity agreement. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if the indemnifying party is obligated to pay be liable for (a) the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law separate firm (in addition to any local counsel) for the indemnified partiesInitial Purchaser, Holders of Registrable Securities, and all persons, if any, who control such indemnified party the Initial Purchaser or Holders of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict collectively (b) the fees and expenses of interest or more than one separate firm (in addition to any local counsel) for the Company, its directors, and different defenses among each person, if any, who controls the indemnified partiesCompany within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Initial Purchaser, Holders of Registrable Securities, and control persons of the Initial Purchaser and Holders of Registrable Securities, such firm shall be designated in writing by the Initial Purchaser. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability 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 the second and third sentences of this paragraph, the 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 forty-five (45) days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least thirty (30) days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. Notwithstanding the immediately preceding 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, an indemnifying party shall not be liable for any settlement effected without its consent if such indemnifying party (i) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (ii) provides written notice to the indemnified party substantiating the unpaid balance as unreasonable, in each case prior to the date of such settlement. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than forty-five (45) days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least thirty (30) days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement. Notwithstanding the immediately preceding 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, an indemnifying party shall not be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its consent if such indemnifying party (1) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (2) provides written notice to the indemnified party substantiating the unpaid balance as unreasonable, in each case prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder Holders of the Registrable Securities or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling neither the Holder of any Registrable Securities nor the Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party Holder of Registrable Securities or by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party Holder of Registrable Securities or the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such Holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Affiliated Managers Group Inc)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers Holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by the Initial Purchaser), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, -------- ------- liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of the Initial Purchaser, such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls the Initial Purchaser or any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received if a Deferral NoticeNotice was given to such Notice Holder in accordance with Section 8(b), or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder Holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the Holders of Registrable Securities, and each person, if any, who controls the Company or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnity agreement. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if the indemnifying party is obligated to pay be liable for (a) the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law separate firm (in addition to any local counsel) ), whose fees must be reasonable, for the indemnified partiesInitial Purchaser, Holders of Registrable Securities, and all persons, if any, who control such indemnified party the Initial Purchaser or Holders of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict collectively (b) the fees and expenses of interest or more than one separate firm (in addition to any local counsel), whose fees must be reasonable, for the Company and different defenses among each person, if any, who controls the indemnified partiesCompany within the meaning of either such Section, and that all fees and expenses payable under (a) and (b) above shall be reimbursed as they are incurred. In the case of any such separate firm for the Initial Purchaser, Holders of Registrable Securities, and control persons of the Initial Purchaser and Holders of Registrable Securities, such firm shall be designated in writing by the Initial Purchaser. In the case of any such separate firm for the Company and control persons of the Company, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, but if settled with such consent or if there be a final non-appealable judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement; provided, that an indemnifying party shall not be liable for any such settlement effected without its consent if such indemnifying party (1) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (2) provides written notice to the indemnified party substantiating the unpaid balance as unreasonable, in each case prior to the date of such settlement.
(e) If the indemnification provided for in to which an indemnified party is entitled under this Section 7 6 is for any reason unavailable to or insufficient although applicable in accordance with its terms to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder of the Registrable Securities or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any out-of-pocket legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling neither the Holder of any Registrable Securities nor the Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party Holder of Registrable Securities or by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party Holder of Registrable Securities or the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such Holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company, as the case may be.
Appears in 1 contract
Samples: Registration Rights Agreement (Vishay Intertechnology Inc)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless each Holder, its directors, officers Holder and each personPerson, if any, who controls any Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Shelf Registration Statement (or any amendment thereto)) pursuant to which Registrable Securities were registered under the Securities Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the any 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below) any if such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any Holder), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall does not apply to any loss, liability, claim, damage damage, liability or expense to the extent arising it arises out of any an untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the a Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this . The foregoing indemnity agreement with respect to any untrue statement contained in or any omission from a preliminary prospectus shall not apply inure to the benefit of any Holder (or any Person controlling such Holder) from whom the Person asserting any such loss, liability, claim, damage or expense (1) arising from an offer or sale purchased any of Registrable the Securities occurring during a Deferral Period, after that are the Holder received a Deferral Notice, or (2) subject thereof if the Holder fails to deliver Company shall sustain the burden of proving that such Person was not conveyed a copy of any amendment or supplement thereto at or prior to the written confirmation time of sale, sale of such Securities to such Person and the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement contained in or the omission from such preliminary prospectus was corrected in such amendment or alleged untrue statement or omission of a material factsupplement thereto.
(b) In connection with any Shelf Registration in which a Each Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, agrees to indemnify and hold harmless the IssuersCompany, its directors, officers and each personPerson, if any, who controls the Issuers Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 6(a) of this Sectionhereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give prompt notice to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify shall not relieve such an indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account under this indemnity agreement. An indemnifying party may participate at its own expense in the defense of this indemnitysuch action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, shall assume the defense of such proceeding, including the employment of ) also be counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others party. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such for all indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, parties in connection with any one action or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by separate but similar or related actions in the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party)jurisdiction, provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding the same general allegations or claim, 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 partycircumstances.
(d) If In order to provide for just and equitable contribution in circumstances in which the indemnification indemnity agreement provided for in this Section 7 6 is for any reason unavailable held to or insufficient to hold harmless an be unenforceable by the indemnified party parties although applicable in respect of any lossesaccordance with its terms, liabilities, claims, damages or expenses referred to therein, then each indemnifying party the Company and the Holders shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses of the nature contemplated by such indemnity agreement incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault Company and one or more of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such lossesHolders; provided, liabilitieshowever, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation.
. As between the Company and the Holders, such parties shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by such indemnity agreement in such proportion as shall be appropriate to reflect (i) the relative benefits received by the Company on the one hand and the Holders on the other hand, from the offering of the Exchange Securities or Registrable Securities included in such offering, and (ii) the relative fault of the Company on the one hand and the Holders on the other, with respect to the statements or omissions which resulted in such loss, liability, claim, damage or expense, or action in respect thereof, as well as any other relevant equitable considerations. The Company and the Holders of the Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 6 were to be determined by pro rata allocation or by any other method of allocation which does not take into account the relevant equitable considerations. For purposes of this Section 76, each personPerson, if any, who controls any a Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each persondirector of the Company, each officer of the Company who signed the Registration Statement, and each Person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersCompany.
Appears in 1 contract
Samples: Registration Rights Agreement (Cablevision Systems Corp /Ny)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser, each HolderHolder who has provided information to the Company in accordance with Section 2.1(d) hereof, its directors, officers each Person who participates as an underwriter (any such Person being an “Underwriter”) and each personPerson, if any, who controls any such Holder or Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Shelf Registration Statement (or any amendment or supplement thereto)) pursuant to which Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), ) or any Issuer Free Writing 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, ; provided that (subject to Section 7(c4(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all reasonable out-of-pocket expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of such any Holder or any person, if any, who controls any such Holder Underwriter expressly for use in the a Shelf Registration Statement (or any amendment thereto), any Prospectus (or any preliminary prospectus amendment or the supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Each Holder is participating in and furnishing who has provided information relating to such Holder to the Issuers Company in writing expressly for use in such Registration Statementaccordance with Section 2.1(d) hereof, any preliminary prospectusseverally, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the IssuersCompany, the Initial Purchaser, each Underwriter and the other selling Holders who have provided information to the Company in accordance with Section 2.1(d) hereof, and each personof their respective directors and officers, and each Person, if any, who controls the Issuers Company, the Initial Purchaser, any Underwriter or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 4(a) of this Sectionhereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in conformity with written information with respect to such Holder furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Shelf Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, shall assume the defense of such proceeding, including the employment of ) also be counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others party. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 4 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties Company on the one hand and of the indemnified party or parties Holders and the Initial Purchaser on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders and the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company, or by the Holder Holders or the Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company, the Holders and the Initial Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 7 4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 74. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 4 shall be deemed to include any reasonable out-of-pocket legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 74, an indemnifying party that is a selling Holder the Initial Purchaser shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public it were offered to the public exceeds the amount of any damages that such indemnifying party which the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act1000 Xxx) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 74, each personPerson, if any, who controls any the Initial Purchaser or Holder within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as such Initial Purchaser or Holder, and each persondirector of the Company, and each Person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as the IssuersCompany.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser, each Holder, its directors, officers each Person who participates as an underwriter (any such Person being an "Underwriter") and each personPerson, if any, who controls any such Initial Purchaser, Holder or Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Shelf Registration Statement (or any amendment or supplement thereto), including the Rule 430B information, pursuant to which Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), ) or any Issuer Free Writing 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission; provided, provided that (subject to Section 7(c4(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all reasonable out-of-pocket expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of such any Holder or any person, if any, who controls any such Holder Underwriter expressly for use in the a Shelf Registration Statement (or any amendment thereto), including the Rule 430B information, any Prospectus (or any preliminary prospectus amendment or the supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration StatementEach Holder, any preliminary prospectusseverally, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the IssuersCompany, the Initial Purchaser, each Underwriter and the other selling Holders, and each personof their respective directors and officers, and each Person, if any, who controls the Issuers Company, the Initial Purchaser, any Underwriter or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 4(a) of this Sectionhereof, as incurredincurred (including the fees and disbursements of counsel chosen by the Company), but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), including the Rule 430B Information, or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus in reliance upon and in conformity with written information with respect to such Holder furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Shelf Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto)) or any Issuer Free Writing Prospectus; provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, shall assume the defense of such proceeding, including the employment of ) also be counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others party. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 4 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties Company on the one hand and of the indemnified party or parties Holders and the Initial Purchaser on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders and the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company, or by the Holder Holders or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company, the Holders and the Initial Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 7 4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 74. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 4 shall be deemed to include any reasonable out-of-pocket legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 74, an indemnifying party that is a selling Holder the Initial Purchaser shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public it were offered to the public exceeds the amount of any damages that such indemnifying party which the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act0000 Xxx) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 74, each personPerson, if any, who controls any the Initial Purchaser or Holder within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as such Initial Purchaser or Holder, and each persondirector of the Company, and each Person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as the IssuersCompany.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c7(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) below, against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of Initial Purchaser or such Holder or any holder of Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls the Initial Purchaser or any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, provided further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after if the indemnified party is a Notice Holder that received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuersprospectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any holder of Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and each person, if any, who controls the Company or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the or on behalf of Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingaction; provided, any indemnified party shall have the right however, that counsel to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent (except with the consent of the indemnified party), provided that, if ) also be counsel to the indemnified party. In no event shall the indemnifying party is obligated to pay the parties be liable for fees and expenses of more than one counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 7(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 7(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 77(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 7(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party holder of Registrable Securities or underwritten by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party holder of Registrable Securities or the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 77(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Stilwell Financial Inc)
Indemnification; Contribution. (a) The Issuers agree, jointly Each of the Company and severally, the Guarantor agrees to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany or the Guarantor; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by the Initial Purchaser), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company and the Guarantor by or on behalf the Initial Purchaser, such holder of such Holder Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls the Initial Purchaser or any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received if a Deferral NoticeNotice was given to such Notice Holder in accordance with Section 8(b), or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers Company and the Guarantor in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company and the Guarantor, and each person, if any, who controls the Company and the Guarantor within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.or
Appears in 1 contract
Samples: Registration Rights Agreement (Countrywide Home Loans Inc)
Indemnification; Contribution. (a) Indemnification by the Company. The Issuers agree, jointly and severally, Company agrees to indemnify ------------------------------ and hold harmless each Holder, its directors, officers Holder and each personPerson, if any, who controls any Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment thereto)) pursuant to which such Holder's Registrable Securities were registered under the Securities Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), including all documents incorporated therein by reference, 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency agency, body or bodythird party, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below) any if such settlement is effected with the prior written consent of the IssuersCompany which shall not be unreasonably withheld; and
(iii) subject to Section 7(c) below, against reasonable expenses any and all expense (including the reasonable fees and disbursements of counsel), as reasonably incurred in investigating, preparing or defending against any litigation, or any 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 the extent that any such expense is not paid under subparagraph (i) or (ii) above; . provided, however, that the indemnity provided pursuant to this indemnity agreement shall Section 8(a) -------- ------- does not apply to any Holder with respect to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, and each person, if any, who controls the Issuers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the any Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.
Appears in 1 contract
Samples: Registration Rights and Lock Up Agreement (Cais Internet Inc)
Indemnification; Contribution. (a) The Issuers agree, jointly Company and severally, the Guarantor agree to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers Holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c6(c) below, against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of the Initial Purchaser, such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls the Initial Purchaser or any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, provided further that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received if a Deferral Notice, Notice was given to such Notice Holder or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material factfact and the delivery thereof was required by law.
(b) In connection with any Shelf Registration Statement in which a Holder Holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, the Guarantor and each person, if any, who controls the Company or the Guarantor within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company or the Guarantor by or on behalf of such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the Guarantor, the Holders of Registrable Securities, and each person, if any, who controls the Company, the Guarantor or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section 6, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the these indemnity provisions. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain a separate firm as its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if be liable for (A) the indemnifying party is obligated to pay the reasonable fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law firm (in addition to any local counsel) for the indemnified partiesInitial Purchaser, Holders of Registrable Securities, and all persons, if any, who control such indemnified party the Initial Purchaser or Holders of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.either
Appears in 1 contract
Samples: Registration Rights Agreement (Northwest Airlines Inc /Mn)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchasers and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchasers or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by each and any Initial Purchaser or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder Initial Purchaser or any such holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, each Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers in writing Company expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, each Initial Purchaser and each person, if any, who controls the Issuers any Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). Each of the Initial Purchasers agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and each person, if any, who controls the Company or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information furnished to the Company by such Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingaction; provided, any indemnified party shall have the right however, that counsel to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent (except with the consent of the indemnified party), provided that, if ) also be counsel to the indemnified party. In no event shall the indemnifying party is obligated to pay the parties be liable for fees and expenses of more than one counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request for fees and expenses prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or such Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or such Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor any Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party holder of Registrable Securities or unwritten by such Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has holder of Registrable Securities or such Initial Purchaser have otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls any Holder Initial Purchaser or any holder of Registrable Securities within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such HolderInitial Purchaser or such holder, and each person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersCompany.
Appears in 1 contract
Samples: Registration Rights Agreement (Osi Pharmaceuticals Inc)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Buyer agrees to indemnify and hold harmless each Holderthe Seller, its the directors, officers officers, employees, subsidiaries and agents of each such Holder and each person, if any, Person who controls any Holder the Seller within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (a "Controlling Person"), as follows:
(i) from and against any and all losslosses, liabilityclaims, claimdamages, damage liabilities and related expenseexpenses (including, without limiting the foregoing but subject to Section 4(c) hereof, the legal and other expenses incurred in connection with any action, suit or proceeding or any claim asserted) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement or Prospectus (as amended or supplemented if the Buyer shall have furnished any amendment amendments or supplements thereto), or the arising out of or based upon 4 any omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in provided that the light of the circumstances under which they were made, Buyer shall not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included be liable in any preliminary prospectus or such case to 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;
(ii) against any and all loss, liability, claim, damage and related expense, Seller to the extent that such losses, claims, damages, liabilities or expenses arise out of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever are based upon any such untrue statement or omission, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below) any such settlement is effected with the prior written consent of the Issuers; and
(iii) subject to Section 7(c) below, against reasonable expenses (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and conformity with information specifically relating to the Seller, furnished in writing to the Buyer by the Seller expressly for use in such Registration Statement or Prospectus.
(b) The Seller agrees to indemnify and hold harmless the Buyer, the directors, officers, employees, subsidiaries and agents of the Buyer and each Controlling Person, from and against any and all losses, claims, damages, liabilities and expenses (including, without limiting the foregoing but subject to Section 4(c) hereof, the legal and other expenses incurred in connection with any action, suit or proceeding or any claim asserted) arising out of or based upon any untrue statement made in such Registration Statement or Prospectus in reliance upon or in conformity with written information relating specifically to such Holder which was furnished in writing to the Issuers Buyer by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the such Registration Statement (or any amendment thereto)Prospectus, or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, provided that this indemnity agreement such Holder shall not apply to be liable in any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior such case to the written confirmation extent that such losses, claims, damages, liabilities or expenses arise out of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected are based upon any such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in for which a such Holder is participating in and furnishing information relating entitled to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, and each person, if any, who controls the Issuers within the meaning of either indemnification under Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a4(a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto)hereof.
(c) In case any action or proceeding (including any governmental investigationor regulatory investigation or proceeding) shall be instituted involving brought against any person in party indemnified under either of paragraphs (a) or (b) above (an "Indemnified Party"), based upon the Registration Statement or any Prospectus, or any amendment or supplement thereto, and with respect of to which indemnity may be sought pursuant against the party to Section 7(a) or 7(b) hereof, provide such person indemnification (the “indemnified party”) "Indemnifying Party"), the Indemnified Party shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) Indemnifying Party in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, writing and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, Indemnifying Party shall assume the defense of such proceedingthereof, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party Indemnified Party and any others the indemnifying party may designate in such proceeding and shall pay the payment of all reasonable fees and disbursements of such counsel related to such proceedingexpenses relating thereto. In any such proceeding, any indemnified party The Indemnified Party shall have the right to retain its own counselemploy separate counsel in any such action or proceeding and participate in the defense thereof, but the fees and expenses of such counsel shall be at the Indemnified Party's expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention employment of such counselcounsel has been specifically authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party has not assumed the defense and employed counsel reasonably satisfactory to such Indemnified Party within 15 days after notice of any such action or proceeding, or (iiiii) the named parties to any such action or proceeding (including any impleaded parties) include both the indemnifying party Indemnified Party and the indemnified party Indemnifying Party and representation of both parties such Indemnified Party shall have been advised by such counsel that there may be one or more legal defenses available to the same counsel would be inappropriate due Indemnifying Party that are different from or additional to actual or potential differing interests between them those available to the Indemnifying Party (in which case counsel designated by the indemnifying party Indemnifying Party shall not represent have the indemnified party)right to assume the defense of such action or proceeding on behalf of such Indemnified Party, provided thatit being understood, if however, that the indemnifying party is obligated to pay Indemnifying Party shall not, in connection with any one such action or separate but substantially similar or related actions arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law separate firm of attorneys (in addition to any all local counselcounsel which is necessary, in the good faith opinion of counsel for the Indemnified Party in order to adequately represent the Indemnified Party) for the indemnified partiesIndemnified Party, which firm shall be 5 designated in writing by the Indemnified Party and that all persons, if any, who control such indemnified party within the meaning fees and expenses shall be reimbursed as they are incurred upon written request and presentation of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified partiesinvoices). The indemnifying party Indemnifying Party shall not be liable for any settlement of any proceeding such action effected without its the written consentconsent of the Indemnifying Party, which may cannot be unreasonably withheld or delayedwithheld, but if settled with such the written consent of the Indemnifying Party or if there be is a final judgment for the plaintiff, the indemnifying party Indemnifying Party agrees to indemnify the indemnified party and hold harmless such Indemnified Party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shallThe Indemnifying Party shall not, without the prior written consent of each indemnified partythe Indemnified Party, settle or compromise or consent to the entry effect any settlement of any judgment with respect to any litigation, pending or any investigation or threatened proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be such Indemnified Party is a party and indemnity has been sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), hereunder by such Indemnified Party unless such settlement, compromise or consent (I) settlement includes an unconditional release of each indemnified party such Indemnified Party from all liability arising out on claims that are the subject matter of such litigation, investigation, proceeding or claimto which it is entitled to be indemnified, and (II) does may not include a statement settle matters as to or an admission of fault, culpability or a failure which the Indemnified Party is not entitled to act by or on behalf of any indemnified partyindemnification.
(d) If the indemnification provided for in this Section 7 4 is for any reason unavailable to an Indemnified Party under paragraph (a) or insufficient to hold harmless an indemnified party (b) hereof (other than by reason of the exceptions provided therein) in respect of any losses, liabilities, claims, damages damages, liabilities or expenses referred to therein, then each Indemnifying Party, in lieu of indemnifying party such Indemnified Party, shall contribute to the aggregate amount paid or payable to such Indemnified Party as a result of such losses, liabilities, claims, damages damages, liabilities and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties Indemnifying Party on the one hand and of the indemnified party or parties Indemnified Party on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages damages, liabilities or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Indemnifying Party on the one hand and the Holders Indemnified Party on the other hand shall be determined by reference to, among other things, whether any such the untrue or alleged untrue statement of a material fact or omission or alleged the omission to state a material fact relates related to information supplied by the Issuers Indemnifying Party on the one hand or by the Holder Indemnified Party on the other hand and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(fe) The parties hereto Buyer and the Seller agree that it would not be just and equitable if contribution pursuant to this Section 7 4 were determined by a pro rata allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to in paragraph (d) above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 which shall be deemed to include include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party Indemnified Party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or connection with investigating any claim whatsoever based upon or defendant in any such untrue action, suit or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser, each Holder, its directors, officers each Person who participates as an underwriter (any such Person being an “Underwriter”) and each personPerson, if any, who controls any such Initial Purchaser, Holder or Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Shelf Registration Statement (or any amendment or supplement thereto), including the Rule 430B information, pursuant to which Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), ) or any Issuer Free Writing 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, ; provided that (subject to Section 7(c4(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all reasonable out-of-pocket expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of such any Holder or any person, if any, who controls any such Holder Underwriter expressly for use in the a Shelf Registration Statement (or any amendment thereto), including the Rule 430B information, any Prospectus (or any preliminary prospectus amendment or the supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration StatementEach Holder, any preliminary prospectusseverally, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the IssuersCompany, the Initial Purchaser, each Underwriter and the other selling Holders, and each personof their respective directors and officers, and each Person, if any, who controls the Issuers Company, the Initial Purchaser, any Underwriter or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 4(a) of this Sectionhereof, as incurredincurred (including the fees and disbursements of counsel chosen by the Company), but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), including the Rule 430B Information, or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus in reliance upon and in conformity with written information with respect to such Holder furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Shelf Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto)) or any Issuer Free Writing Prospectus; provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, shall assume the defense of such proceeding, including the employment of ) also be counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others party. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 4 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties Company on the one hand and of the indemnified party or parties Holders and the Initial Purchaser on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders and the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company, or by the Holder Holders or the Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company, the Holders and the Initial Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 7 4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 74. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 4 shall be deemed to include any reasonable out-of-pocket legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 74, an indemnifying party that is a selling Holder the Initial Purchaser shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public it were offered to the public exceeds the amount of any damages that such indemnifying party which the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act0000 Xxx) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 74, each personPerson, if any, who controls any the Initial Purchaser or Holder within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as such Initial Purchaser or Holder, and each persondirector of the Company, and each Person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act shall have the same rights to contribution as the IssuersCompany.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchasers, each Holder, its directors, officers Holder and each person, if any, who controls any Initial Purchaser or any Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment or supplement thereto)) pursuant to which Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, ; provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by the Initial Purchasers or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the a Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Each Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statementseverally, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the IssuersCompany, the Initial Purchasers, the other selling Holders, and each of their respective directors and officers, and each person, if any, who controls the Issuers Company, any Initial Purchaser or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 6(a) of this Sectionhereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in conformity with written information with respect to such Holder furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Shelf Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure so to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, shall assume the defense of such proceeding, including the employment of ) also be counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others party. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which that resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders and the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company, the Holders or by the Holder Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling neither the Initial Purchasers nor any Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party Holder or underwritten by the Initial Purchasers, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has Holder or the Initial Purchasers have otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For misrepresentaxxxx. Xor purposes of this Section 76, each person, if any, who controls any Initial Purchaser or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Initial Purchaser or Holder, and each director of the, and each person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersCompany.
Appears in 1 contract
Samples: Registration Rights Agreement (McMoran Exploration Co /De/)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to ----------------------------- indemnify and hold harmless the Initial Purchaser, each Holderholder of Registrable Securities and the respective Affiliates thereof, its including the respective officers, directors, officers employees, agents and each person, if any, who controls any Holder within the meaning of either Section 15 representatives of the Initial Purchaser, each holder of Registrable Securities Act or Section 20 of and the Exchange Actrespective Affiliates thereof, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of legal counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, -------- ------- claim, damage or expense to the 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 the Issuers Company by the Initial Purchaser, such holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or on behalf of such Holder or any personthe respective Affiliates thereof, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the IssuersInitial Purchaser, the Company and the respective Affiliates thereof, including the respective officers, directors, employees, agents and representatives of the Initial Purchaser, the Company, and each person, if any, who controls the Issuers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Actrespective Affiliates thereof, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and the respective Affiliates thereof, including the respective officers, directors, employees, agents and representatives of the Company, the holders of Registrable Securities and respective Affiliates thereof, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingaction; provided, any indemnified party shall have the right however, that counsel to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent (except -------- ------- with the consent of the indemnified party), provided that, if ) also be counsel to the indemnified party. In no event shall the indemnifying party is obligated to pay the parties be liable for fees and expenses of more than one counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party holder of Registrable Securities or underwritten by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party holder of Registrable Securities or the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Lowes Companies Inc)
Indemnification; Contribution. (a) Indemnification by the Company. The Issuers agree, jointly and severally, Company agrees to indemnify and ------------------------------ hold harmless each Holder, its directorsHolder and the beneficial owners, officers and directors and each personPerson, if any, who controls any each Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, arising as incurred, to which each Holder, or any beneficial owner, officer, director or controlling Person may become subject under the Securities Act or otherwise (A) that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading or arising (B) that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Shelf Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or any omission or alleged omission, provided that (subject to Section 7(c) below) any if such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to the limitations set forth in Section 7(c) below5(c), against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any 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 or alleged omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that the indemnity provided pursuant to this indemnity agreement Section 5(a) -------- ------- shall not apply with respect to any loss, liability, claim, damage or expense to the extent arising that arise out of or are based upon any untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such any Holder or any person, if any, who controls any such Holder (i) expressly for use in the Shelf Registration Statement (or any amendment thereto), or any preliminary prospectus or the Shelf Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, and each person, if any, who controls the Issuers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, thereto or (ii) the named parties pursuant to any such proceeding (including representation, warranty or other statement contained in the Contribution Agreement or any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent admission amendment to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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 partyPartnership Agreement.
(d) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless Xxxxxxx Xxxxx and each Holder, its directors, officers Holder of Registrable Securities and each person, if any, who controls Xxxxxxx Xxxxx or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, arising out of as incurred, resulting from any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of resulting from any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c6(c) below, against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of such Holder Xxxxxxx Xxxxx or any Holder of Registrable Securities and each person, if any, who controls Xxxxxxx Xxxxx or any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the if a Notice Holder received was given a Deferral Notice, or (2) if the a Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement of a material fact or omission would have included the omitted or allegedly omitted statement of a material fact.
(b) In connection with any Shelf Registration in which a Holder Holder, including, without limitation, Xxxxxxx Xxxxx, of Registrable Securities is participating participating, in and furnishing information relating to such Holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Xxxxxxx Xxxxx and each person, if any, who controls the Issuers Xxxxxxx Xxxxx within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). Xxxxxxx Xxxxx agrees to indemnify and hold harmless the Company, the Holders of Registrable Securities, and each person, if any, who controls the Company or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by or on behalf of Xxxxxxx Xxxxx expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnity agreement. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if the indemnifying party is obligated to pay be liable for (a) the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law separate firm (in addition to any local counsel) for the indemnified partiesXxxxxxx Xxxxx, Holders of Registrable Securities, and all persons, if any, who control such indemnified party Xxxxxxx Xxxxx or Holders of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict collectively (b) the fees and expenses of interest or more than one separate firm (in addition to any local counsel) for the Company, its directors, and different defenses among each person, if any, who controls the indemnified partiesCompany within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for Xxxxxxx Xxxxx, Holders of Registrable Securities, and control persons of Xxxxxxx Xxxxx and Holders of Registrable Securities, such firm shall be designated in writing by Xxxxxxx Xxxxx. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability 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 the second and third sentences of this paragraph, the 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 forty-five (45) days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least thirty (30) days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. Notwithstanding the immediately preceding 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, an indemnifying party shall not be liable for any settlement effected without its consent if such indemnifying party (i) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (ii) provides written notice to the indemnified party substantiating the unpaid balance as unreasonable, in each case prior to the date of such settlement. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than forty-five (45) days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least thirty (30) days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement. Notwithstanding the immediately preceding 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, an indemnifying party shall not be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its consent if such indemnifying party (1) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (2) provides written notice to the indemnified party substantiating the unpaid balance as unreasonable, in each case prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders of the Registrable Securities or Xxxxxxx Xxxxx on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder Holders of the Registrable Securities or Xxxxxxx Xxxxx and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling neither the Holder of any Registrable Securities nor Xxxxxxx Xxxxx, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party Holder of Registrable Securities or by Xxxxxxx Xxxxx, as the case may be, and distributed sold to the public were offered to the public institutional investors exceeds the amount of any damages that such indemnifying party Holder of Registrable Securities or Xxxxxxx Xxxxx has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls Xxxxxxx Xxxxx or any Holder of Registrable Securities within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as Xxxxxxx Xxxxx or such Holder, and each person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersCompany.
Appears in 1 contract
Samples: Registration Rights Agreement (Affiliated Managers Group Inc)
Indemnification; Contribution. (a) The Issuers Companies agree, jointly and severally, to indemnify and hold harmless each Holder, its directors, officers Initial Purchaser and each Holder of Registrable Securities and each person, if any, who controls each Initial Purchaser or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(c) below) any such settlement is effected with the prior written consent of the IssuersCompanies; and
(iii) subject to Section 7(c6(c) below, against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Companies by or on behalf of the Initial Purchasers, such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls the Initial Purchasers or any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after if the Notice Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder Holder, including, without limitation, the Initial Purchasers, of Registrable Securities is participating participating, in and furnishing information relating to such Holder of Registrable Securities to the Issuers Companies in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, each Initial Purchaser and each person, if any, who controls the Issuers each Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Companies, and each person, if any, who controls either of the Companies within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Companies by or on behalf of such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a6(a) or 7(b6(b) hereof, such person (the “"indemnified party”") shall promptly notify the person against whom such indemnity may be sought (the “"indemnifying party”") in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if the indemnifying party is obligated to pay be liable for (a) the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law separate firm (in addition to any local counsel) for the indemnified partiesInitial Purchasers, Holders of Registrable Securities, and all persons, if any, who control such indemnified party the Initial Purchasers or Holders of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict (b) the fees and expenses of interest or more than one separate firm (in addition to any local counsel) for the Companies, their respective directors, and different defenses among each person, if any, who controls either of the indemnified partiesCompanies within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Initial Purchasers, Holders of Registrable Securities, and control persons of the Initial Purchasers and Holders of Registrable Securities, such firm shall be designated in writing by the Initial Purchasers. In the case of any such separate firm for the Companies, and such directors, officers and control persons of either of the Companies, such firm shall be designated in writing by the Companies. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability 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 the second and third sentences of this paragraph, the 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 days after receipt by such indemnifying party of the aforesaid request for reimbursement, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into (which period may be within the 60-day period in clause (i)) and (iii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Companies on the one hand and the Holders of the Registrable Securities or the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Companies or by the Holder of the Registrable Securities or the Initial Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(d). The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 6(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(d), each person, if any, who controls an Initial Purchaser or any Holder of Registrable Securities within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such the Initial Purchasers or such Holder, and each person, if any, who controls either of the Issuers Companies within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersCompanies.
Appears in 1 contract
Samples: Registration Rights Agreement (Tyco International LTD /Ber/)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers Holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by the Initial Purchaser), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of the Initial Purchaser, such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls the Initial Purchaser or any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received if a Deferral NoticeNotice was given to such Notice Holder in accordance with Section 8(b), or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder Holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls any such Holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the Holders of Registrable Securities, and each person, if any, who controls the Company or any Holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnity agreement. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if the indemnifying party is obligated to pay be liable for (a) the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law separate firm (in addition to any local counsel) ), whose fees must be reasonable, for the indemnified partiesInitial Purchaser, Holders of Registrable Securities, and all persons, if any, who control such indemnified party the Initial Purchaser or Holders of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict collectively, and (b) the fees and expenses of interest or more than one separate firm (in addition to any local counsel), whose fees must be reasonable, for the Company and different defenses among each person, if any, who controls the indemnified partiesCompany within the meaning of either such Section, and that all fees and expenses payable under (a) and (b) above shall be reimbursed as they are incurred. In the case of any such separate firm for the Initial Purchaser, Holders of Registrable Securities, and control persons of the Initial Purchaser and Holders of Registrable Securities, such firm shall be designated in writing by the Initial Purchaser. In the case of any such separate firm for the Company and control persons of the Company, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, but if settled with such consent or if there be a final non-appealable judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement; provided, that an indemnifying party shall not be liable for any such settlement effected without its consent if such indemnifying party (1) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (2) provides written notice to the indemnified party substantiating the unpaid balance as unreasonable, in each case prior to the date of such settlement.
(e) If the indemnification provided for in to which an indemnified party is entitled under this Section 7 6 is for any reason unavailable to or insufficient although applicable in accordance with its terms to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder of the Registrable Securities or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any out-of-pocket legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling neither the Holder of any Registrable Securities nor the Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party Holder of Registrable Securities or by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party Holder of Registrable Securities or the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such Holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchasers, each Holder, its directors, officers Holder and each person, if any, who controls any Initial Purchaser or any Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment or supplement thereto)) pursuant to which Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, ; provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by the Initial Purchasers or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the a Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Each Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statementseverally, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the IssuersCompany, the Initial Purchasers, the other selling Holders, and each of their respective directors and officers, and each person, if any, who controls the Issuers Company, any Initial Purchaser or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 6(a) of this Sectionhereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in conformity with written information with respect to such Holder furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Shelf Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure so to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, shall assume the defense of such proceeding, including the employment of ) also be counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others party. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which that resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders and the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company, the Holders or by the Holder Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling neither the Initial Purchasers nor any Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party Holder or underwritten by the Initial Purchasers, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has Holder or the Initial Purchasers have otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76, each person, if any, who controls any Initial Purchaser or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Initial Purchaser or Holder, and each director of the, and each person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersCompany.
Appears in 1 contract
Samples: Registration Rights Agreement (McMoran Exploration Co /De/)
Indemnification; Contribution. (a) Indemnification by the Company. The Issuers agree, jointly and severally, Company agrees to indemnify and ------------------------------ hold harmless each Holder, Holder and its directors, officers and directors and each personPerson, if any, who controls any Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, arising as incurred, to which such Holder, officer, director or controlling Person may become subject under the Securities Act or otherwise (A) that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading or arising (B) that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omissionany omission or alleged omission contained in the Shelf Registration Statement, provided that (subject to Section 7(c) below) any if such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to the limitations set forth in Section 7(c) below), against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any 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 or alleged omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that the indemnity provided pursuant to this indemnity agreement Section 7(a) -------- ------- shall not apply to any Holder with respect to any loss, liability, claim, damage or expense to the extent arising that arise out of or are based upon any untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Shelf Registration Statement (or any amendment thereto), or any preliminary prospectus thereto or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, and each person, if any, who controls the Issuers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchasers, each Holder, its directorseach Participating Broker-Dealer, officers each Person who participates as an underwriter (any such Person being an "Underwriter'), their respective affiliates, and each personPerson, if any, who controls any Holder of such parties within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and each of their respective directors, officers, employees and agents, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment or supplement thereto)) pursuant to which Exchange Securities or Registrable Securities were registered under the Securities Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided ; PROVIDED that (subject to Section 7(c4(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party, except to the extent otherwise expressly provided in Section 4(c) hereof), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; providedPROVIDED, howeverHOWEVER, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense whatsoever to the 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 the Issuers Company by the Initial Purchasers, such Holder, Participating Broker-Dealer or on behalf of such Holder Underwriter (or any personperson controlling such Initial Purchaser, if anyHolder, who controls any such Holder Participating Broker-Dealer or Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) expressly for use in the a Registration Statement (or any amendment or supplement thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); providedPROVIDED, furtherFURTHER, that this such indemnity agreement with respect to any preliminary prospectus shall not apply inure to the benefit of any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter (or any persons controlling such Initial Purchaser, Participating Broker-Dealer, Holder or Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) (i) from whom the person asserting such loss, liability, claim, damage or expense liability purchased the Securities which are the subject thereof if such person did not receive a copy of the final Prospectus (1or the final Prospectus as amended or supplemented) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished sale of such Securities to it by such person in any case where the Issuers, as amended or supplemented, Company complied with its obligations under Sections 3(c) and such Prospectus, as amended or supplemented, would have corrected 3(f)(A)(ii) hereof and any such untrue statement or omission or alleged untrue statement or omission of a material factfact contained in such preliminary prospectus (or any amendment or supplement thereto) was corrected in the final Prospectus (or the final Prospectus as amended or supplemented) or (ii) if it resulted from the use of the Prospectus during a period when the use of the Prospectus has been suspended in accordance with Section 2.4(b) or Sections 3(e)(ii), 3(e)(iii), 3(e)(v) and 3(e)(vi) hereof; PROVIDED, in each case, that Holders received prior notice of such suspension.
(b) In connection with any Shelf Registration in which a Each Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statementseverally, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the IssuersCompany, the Initial Purchasers, each Underwriter and the other selling Holders, and each personof their respective directors, officers, employees and agents, and each Person, if any, who controls the Issuers Company, the Initial Purchasers, any Underwriter or any other selling Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 4(a) of this Sectionhereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder Company expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.in
Appears in 1 contract
Samples: Registration Rights Agreement (Bally Total Fitness Holding Corp)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees ----------------------------- to indemnify and hold harmless the Initial Purchasers and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchasers or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, -------- ------- claim, damage or expense to the 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 the Issuers Company by the Initial Purchasers or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls the Initial Purchasers or any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, provided further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have having been previously furnished by on or behalf of the Company to such Holder corrected such untrue statement or omission or alleged untrue statement or omission of a material factfact and the delivery thereof by such Holder was required by law or any rule or regulation of any applicable stock exchange.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Initial Purchasers, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchasers and each person, if any, who controls the Issuers Initial Purchasers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). Each of the Initial Purchasers agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and each person, if any, who controls the Company or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Initial Purchasers expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingaction; provided, any indemnified party shall have the right -------- however, that counsel to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent (except with the ------- consent of the indemnified party), provided that, if ) also be counsel to the indemnified party. In no event shall the indemnifying party is obligated to pay the parties be liable for fees and expenses of more than one counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Initial Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Initial Purchasers, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party holder of Registrable Securities or underwritten by the Initial Purchasers, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party holder of Registrable Securities or the Initial Purchasers has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchasers or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchasers or such holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, to indemnify and hold harmless each Holder, its directors, officers and each person, if any, who controls any Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expense, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expense, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below) any such settlement is effected with the prior written consent of the Issuers; and
(iii) subject to Section 7(c) below, against reasonable expenses (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, and each person, if any, who controls the Issuers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “"indemnified party”") shall promptly notify the person against whom such indemnity may be sought (the “"indemnifying party”") in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Issuers.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c6(c) below, against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of the Initial Purchaser, such Holder holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls the Initial Purchaser or any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received if a Deferral NoticeNotice was given to such Notice Holder in accordance with Section 8(b), or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material factfact and the delivery thereof was required by law and would have constituted a complete defense to the claim in respect of such untrue statement or omission or alleged untrue statement or omission.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Initial Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and each person, if any, who controls the Company or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by or on behalf of by the Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnity agreement. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if be liable for (a) the indemnifying party is obligated to pay the reasonable fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law separate firm (in addition to any local counsel) for the indemnified partiesInitial Purchaser, Holders of Registrable Securities, and all persons, if any, who control such indemnified party the Initial Purchaser or Holders of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict or (b) the reasonable fees and expenses of interest or more than one separate firm (in addition to any local counsel) for the Company, its directors, and different defenses among each person, if any, who controls the indemnified partiesCompany within the meaning of either such Section, and that all such reasonable fees and expenses shall be reimbursed as they are incurred. The indemnifying party shall not be liable for any settlement In the case of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, but if settled with such consent or if there be a final judgment separate firm for the plaintiffInitial Purchaser, Holders of Registrable Securities, and control persons of the indemnifying party agrees to indemnify Initial Purchaser and Holders of Registrable Securities, such firm shall be designated in writing by the indemnified party from Initial Purchaser. In the case of any such separate firm for the Company, and against any loss or liability such directors, officers and control persons of the Company, such firm shall be designated in writing by reason of such settlement or judgmentthe Company. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement; provided, that an indemnifying party shall not be liable for any such settlement effected without its consent if such indemnifying party (1) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (2) provides written notice to the indemnified party describing any unpaid balance it believes is unreasonable and the reasons therefor, in each case prior to the date of such settlement.
(e) If the indemnification provided for in to which an indemnified party is entitled under this Section 7 6 is for any reason unavailable to or insufficient although applicable in accordance with its terms to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any out-of-pocket legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party holder of Registrable Securities or by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party holder of Registrable Securities or the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchaser and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchaser or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by the Initial Purchaser or on behalf of such Holder or any person, if any, who controls any such Notice Holder expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received if a Deferral NoticeNotice was given to such Notice Holder in accordance with Section 8(c), or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material factfact and the delivery thereof was required by law and would have constituted a complete defense to the claim in respect of such untrue statement or omission or alleged untrue statement or omission.
(b) In connection with any Shelf Registration in which a Each Notice Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agreeagrees, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchaser and each person, if any, who controls the Issuers Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchaser agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and each person, if any, who controls the Company or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Initial Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case any action or proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereofthe foregoing provisions, such person (the “"indemnified party”") shall give notice as promptly notify as reasonably practicable to the person against whom such indemnity may be sought (the “"indemnifying party”") in writing, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingaction; provided, any indemnified party shall have the right however, that counsel to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent (except with the consent of the indemnified party), provided that, if ) also be counsel to the indemnified party. In no event shall the indemnifying party is obligated to pay the parties be liable for fees and expenses of more than one counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Initial Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Initial Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party holder of Registrable Securities or unwritten by the Initial Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party holder of Registrable Securities or the Initial Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchaser or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchaser or such holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Laboratory Corp of America Holdings)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Indemnification by Parent. Parent agrees to indemnify and hold harmless each Holder, its directors, officers and each person, if any, who controls any Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, Shareholders as follows:
(i) subject to the limitation set forth in Section 5(c), against any and all loss, liability, claim, damage and related expenseexpense whatsoever, arising as incurred, to which the Shareholders may become subject under the Securities Act or otherwise (A) that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading or arising (B) that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), or or, the omission or alleged omission therefrom of to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) subject to the limitation set forth in Section 5(c), against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or alleged untrue statement, any omission or alleged omission, or any such alleged untrue statement or omission, provided that (subject to Section 7(c) below) any if such settlement is effected with the prior written consent of the IssuersParent; and
(iii) subject to the limitations set forth in Section 7(c) below5(c), against reasonable expenses any and all expense (including the reasonable fees and disbursements of counsel), ) reasonably incurred in investigating, preparing or defending against any litigation, or any 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 statement, omission or omissionalleged omission that relates to the sale by the Shareholders of Shares under the Registration Statement, to the extent that any such expense is not paid under subparagraph (i) above or (iid) abovebelow; provided, however, that the indemnity provided pursuant to this indemnity agreement Section 5(a) shall not apply to the Shareholders with respect to any loss, liability, claim, damage or expense to the extent arising that arises out of or is based solely upon (1) any untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to Parent by the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for Shareholders with respect to the Shareholders’ use in the Registration Statement (or any amendment thereto), thereto or any preliminary prospectus or the a Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, thereto or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it trades made by the Issuers, as amended Shareholders in violation of section 6(a) below or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission (3) trades made by the Shareholders in violation of a material fact.
(bthe prospectus delivery requirements of Section 5(b) In connection with any Shelf Registration in which a Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, and each person, if any, who controls the Issuers within the meaning of either Section 15 of the Securities Act or Act. This indemnity in Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a5(a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but failure to so notify shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) for the indemnified partiesliability which Parent may otherwise have. Parent will also indemnify any selling brokers, dealer managers, and all persons, if any, similar securities industry professionals participating in the distribution and their officers and directors and each person who control controls such indemnified party within the meaning of either Section 15 of the Securities Act persons or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not each indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent (I) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, 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) If the indemnification provided for in this Section 7 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) The relative fault of the Issuers on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) Notwithstanding the provisions of this Section 7, an indemnifying party that is a selling Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) No person guilty of fraudulent misrepresentation entities (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.
(i) For purposes of this Section 7, each person, if any, who controls any Holder within the meaning of Section 15 same extent as provided above with respect to the indemnification of the Securities Act or Section 20 Shareholders of registrable securities under the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersRegistration Statement.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchasers, each Holder, its directors, officers Holder and each person, if any, who controls any Initial Purchaser or any Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement (or any amendment or supplement thereto)) pursuant to which Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included contained in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, ; provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counselcounsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by the Initial Purchasers or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the a Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the Issuers, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Each Holder is participating in and furnishing information relating to such Holder to the Issuers in writing expressly for use in such Registration Statementseverally, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders of Registrable Securities participating in such Shelf Registration Statement agree, severally and but not jointly, agrees to indemnify and hold harmless the IssuersCompany, the Initial Purchasers, the other selling Holders, and each of their respective directors and officers, and each person, if any, who controls the Issuers Company, any Initial Purchaser or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (aSection 6(a) of this Sectionhereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto), ) or any preliminary prospectus or the Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in conformity with written information with respect to such Holder furnished to the Issuers Company by or on behalf of such Holder or any person, if any, who controls any such Holder expressly for use in the Shelf Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding (including any governmental investigation) shall be instituted involving any person commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure so to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnityindemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; provided, and the indemnifying partyhowever, if that counsel to the indemnifying party so elects, may, or upon request shall not (except with the consent of the indemnified party, shall assume the defense of such proceeding, including the employment of ) also be counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others party. In no event shall the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but or parties be liable for the fees and expenses of such more than one counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent the indemnified party), provided that, if the indemnifying party is obligated to pay the fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than forty-five (45) days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least thirty (30) days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which that resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders and the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company, the Holders or by the Holder Initial Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling neither the Initial Purchasers nor any Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party Holder or underwritten by the Initial Purchasers, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has Holder or the Initial Purchasers have otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities 1933 Act) shall be entitled to contribution from any person who was not guilty nxx xxxxxy of such fraudulent misrepresentation.
(i) . For purposes of this Section 76, each person, if any, who controls any Initial Purchaser or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Initial Purchaser or Holder, and each director of the, and each person, if any, who controls the Issuers Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersCompany. The Initial Purchasers' respective obligations to contribute pursuant to this Section 6 are several in proportion to the principal amount of Registrable Securities set forth opposite their respective names in Schedule A to the Purchase Agreement and not joint.
Appears in 1 contract
Samples: Registration Rights Agreement (Wabash National Corp /De)
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Initial Purchasers and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Initial Purchasers or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c6(c) below, against reasonable expenses any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the 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 the Issuers Company by or on behalf of the Initial Purchasers, such Holder holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls the Initial Purchasers or any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense (1) arising from an offer or sale of Registrable Securities occurring during a Deferral Period, after the Holder received if a Deferral NoticeNotice was given to such Notice Holder in accordance with Section 8(b), or (2) if the Holder fails to deliver at or prior to the written confirmation of sale, the most recent Prospectus furnished to it by the IssuersProspectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material factfact and the delivery thereof was required by law and would have constituted a complete defense to the claim in respect of such untrue statement or omission or alleged untrue statement or omission.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Initial Purchasers, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Initial Purchasers and each person, if any, who controls the Issuers Initial Purchasers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Holder holder of Registrable Securities (which also acknowledges the indemnity provisions herein) or any person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Initial Purchasers agree to indemnify and hold harmless the Company, the holders of Registrable Securities, and each person, if any, who controls the Company or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by or on behalf of by the Initial Purchasers expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnity agreement. The indemnifying party, if the indemnifying party so elects, may, or upon request of the indemnified party, shall assume the defense of such proceeding, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by them. It is understood that the indemnifying party shall not represent not, in respect of the legal expenses of any indemnified party)party in connection with any proceeding or related proceedings in the same jurisdiction, provided that, if be liable for (a) the indemnifying party is obligated to pay the reasonable fees and expenses of counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with more than one attorney or law separate firm (in addition to any local counsel) for the indemnified partiesInitial Purchasers, Holders of Registrable Securities, and all persons, if any, who control such indemnified party the Initial Purchasers or Holders of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, unless there exists a conflict or (b) the reasonable fees and expenses of interest or more than one separate firm (in addition to any local counsel) for the Company, its directors, and different defenses among each person, if any, who controls the indemnified partiesCompany within the meaning of either such Section, and that all such reasonable fees and expenses shall be reimbursed as they are incurred. The indemnifying party shall not be liable for any settlement In the case of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, but if settled with such consent or if there be a final judgment separate firm for the plaintiffInitial Purchasers, Holders of Registrable Securities, and control persons of the indemnifying party agrees to indemnify Initial Purchasers and Holders of Registrable Securities, such firm shall be designated in writing by the indemnified party from Initial Purchasers. In the case of any such separate firm for the Company, and against any loss or liability such directors, officers and control persons of the Company, such firm shall be designated in writing by reason of such settlement or judgmentthe Company. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement; provided, that an indemnifying party shall not be liable for any such settlement effected without its consent if such indemnifying party (1) reimburses such indemnified party in accordance with such request to the extent it considers such request to be reasonable and (2) provides written notice to the indemnified party describing any unpaid balance it believes is unreasonable and the reasons therefor, in each case prior to the date of such settlement.
(e) If the indemnification provided for in to which an indemnified party is entitled under this Section 7 6 is for any reason unavailable to or insufficient although applicable in accordance with its terms to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Initial Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any out-of-pocket legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Initial Purchasers, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party holder of Registrable Securities or by the Initial Purchasers, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party holder of Registrable Securities or the Initial Purchasers has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Initial Purchasers or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersInitial Purchasers or such holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Indemnification; Contribution. (a) The Issuers agree, jointly and severally, Company agrees to indemnify and hold harmless the Purchaser and each Holder, its directors, officers holder of Registrable Securities and each person, if any, who controls the Purchaser or any Holder holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage and related expenseexpense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any 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, or any such alleged untrue statement or omission, provided that (subject to Section 7(c6(d) below) any such settlement is effected with the prior written consent of the IssuersCompany; and
(iii) subject to Section 7(c) belowagainst any and all expense whatsoever, against reasonable expenses as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply (x) to any loss, liability, claim, damage or expense to the 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 the Issuers Company by the Purchaser or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls the Purchaser or any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, further, that this indemnity agreement shall not apply ) or (y) with respect to any preliminary prospectus to the extent that any such loss, liability, claim, damage or expense (1) arising expense, results from an offer the fact the Purchaser or sale a holder of Registrable Securities occurring during sold securities to a Deferral Period, after the Holder received a Deferral Notice, person to whom there was not sent or (2) if the Holder fails to deliver given at or prior to the written confirmation of such sale, a final Prospectus (if the most recent Prospectus Company had previously furnished to it by the Issuers, as amended or supplemented, copies thereof and such Prospectusfinal Prospectus is required by law to be delivered to such person), as amended if the loss, liability, claim or supplemented, would have corrected expense of the Purchaser or such holder results from an untrue statement or omission or alleged untrue statement or an omission of a material factor alleged omission contained in the preliminary prospectus that was corrected in the final Prospectus.
(b) In connection with any Shelf Registration in which a Holder holder, including, without limitation, the Purchaser, of Registrable Securities is participating participating, in and furnishing information relating to such Holder holder of Registrable Securities to the Issuers Company in writing expressly for use in such Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, the Holders holders of such Registrable Securities participating in such Shelf Registration Statement agree, severally and not jointly, to indemnify and hold harmless the Issuers, Purchaser and each person, if any, who controls the Issuers Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the Company, and each person, if any, who controls the Company within the meaning of either such Section, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf such holder of such Holder or any Registrable Securities (which also acknowledges the indemnity provisions herein) and each person, if any, who controls any such Holder holder of Registrable Securities expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Purchaser agrees to indemnify and hold harmless the Company, the holders of Registrable Securities, and each person, if any, who controls the Company or any holder of Registrable Securities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Purchaser expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any proceeding (including any governmental investigation) shall be instituted involving any person action commenced against it in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writinghereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity, and the indemnifying party, if the indemnity agreement. An indemnifying party so elects, may, or upon request of the indemnified party, shall assume may participate at its own expense in the defense of such proceeding, including the employment of counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceedingaction; provided, any indemnified party shall have the right however, that counsel to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party 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 indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case counsel designated by the indemnifying party shall not represent (except with the consent of the indemnified party), provided that, if ) also be counsel to the indemnified party. In no event shall the indemnifying party is obligated to pay the parties be liable for fees and expenses of more than one counsel for other indemnified parties, the indemnifying party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the indemnified parties, and all persons, if any, who control such indemnified party within the meaning of either Section 15 same jurisdiction arising out of the Securities Act same general allegations or Section 20 of the Exchange Act, unless there exists a conflict of interest or separate and different defenses among the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which may not be unreasonably withheld or delayed, 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 against any loss or liability by reason of such settlement or judgmentcircumstances. No indemnifying party shall, without the prior written consent of each the indemnified partyparties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 6 hereof (whether or not each the indemnified party is an parties are actual or potential party parties thereto), unless such settlement, compromise or consent (Ii) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (IIii) 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) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 6 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(e) . The relative fault of the Issuers Company on the one hand and the Holders holders of the Registrable Securities or the Purchaser on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers Company or by the Holder holder of the Registrable Securities or the Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7 6(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 76(e). The aggregate amount of losses, liabilities, claims, damages damages, and expenses incurred by an indemnified party and referred to above in this Section 7 6(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
(g) . Notwithstanding the provisions of this Section 76, an indemnifying party that is a selling Holder neither the holder of any Registrable Securities nor the Purchaser, shall not be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party holder of Registrable Securities or unwritten by the Purchaser, as the case may be, and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party holder of Registrable Securities or the Purchaser has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
(h) . No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(i) . For purposes of this Section 76(e), each person, if any, who controls the Purchaser or any Holder within the meaning holder of Section 15 of the Registrable Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each person, if any, who controls the Issuers within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the IssuersPurchaser or such holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Samples: Purchase Agreement (Idec Pharmaceuticals Corp / De)
