Indemnification; Contribution. (a) The Company shall indemnify and hold harmless, to the fullest extent permitted by law, each Holder in any offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and affiliates against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i) any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or 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. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 3 contracts

Samples: Registration Rights Agreement (Itc Deltacom Inc), Registration Rights Agreement (Itc Deltacom Inc), Registration Rights Agreement (Itc Deltacom Inc)

Indemnification; Contribution. (a) The Company ~~shall~~ agrees to indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each Holder in any offering or sale of Registrable ~~Securities~~Securities pursuant to this Agreement, each Person, if any, who participates as an underwriter in any such offering and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and ~~affiliates~~ Affiliates against all losses, claims, damages, liabilities and expenses (including reasonable attorneys~~' fees, disbursements~~ ’ fees and expenses, as incurred, and any amounts paid in any settlement effected with the Company's ’s consent, which consent shall not be unreasonably withheld or delayed) (collectively, "“Losses"”) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based ~~upon: (i)~~ upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, ~~the~~ any Registration Statement, Prospectus, Free Writing Prospectus or ~~preliminary Prospectus~~ “issuer information” filed or ~~any amendment or supplement~~ required to ~~any of~~ be filed pursuant to Rule 433(d) under the ~~foregoing~~ Securities Act, or necessary to make the statements therein (in the case of a Prospectus, a Free Writing Prospectus or ~~a preliminary Prospectus,~~ “issuer information,” in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (Ai) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (Bii) the use of any Prospectus, Free Writing Prospectus or “issuer information” after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (Ciii) the use of any Prospectus, Free Writing Prospectus or “issuer information” after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus, Free Writing Prospectus or “issuer information” as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant ~~hereto~~to this Agreement, each Holder of holding Registrable Securities to be covered thereby ~~shall~~agrees, severally and not jointly with any other Holders, to indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless the Company, each Person, if any, who participates as an underwriter in any such offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and ~~affiliates~~Affiliates, against all Losses incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, ~~the~~ any Registration Statement, Prospectus, Free Writing Prospectus or ~~preliminary Prospectus~~ “issuer information” filed or ~~any amendment or supplement~~ required to ~~any of~~ be filed pursuant to Rule 433(d) under the ~~foregoing~~ Securities Act, or necessary to make the statements therein (in case of a Prospectus, a Free Writing Prospectus or ~~preliminary Prospectus,~~ “issuer information,” in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the ~~total net proceeds~~ gross proceeds, after deducting any underwriting discounts and commissions, received by such Holder ~~from sales~~ upon the sale of the Registrable Securities of giving rise to such ~~Holder under such Registration Statement~~indemnification obligation. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall ~~wish~~so elect, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of holding Registrable Securities who are indemnified parties, selected by the Holders of holding a ~~Majority~~ majority of the Registrable Securities held by all Holders who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (iA) more than one counsel for all Holders of holding Registrable Securities who are indemnified parties, selected by the Holders of holding a ~~Majority~~ majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (iiB) more than one counsel for the underwriters in an Underwritten Offering or (~~iii~~C) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to of any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the ~~total net proceeds~~ gross proceeds, after deducting any underwriting discounts and commissions, received by such Holder ~~from sales~~ upon the sale of the Registrable Securities ~~of the Holder under the applicable Registration Statement~~giving rise to such contribution obligation. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other ~~things~~matters, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or 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. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 3 contracts

Samples: Registration Rights Agreement (SecureWorks Corp), Registration Rights Agreement (SecureWorks Corp), Registration Rights Agreement (SecureWorks Corp)

Indemnification; Contribution. (a) ~~The Company~~ Amicus shall indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each Holder in any offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within (including the ~~meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners~~employees, agents, ~~employees~~ representatives, officers and ~~affiliates~~ directors of each Purchaser and its Affiliates) (each a “Purchaser Indemnitee”) from and against any and all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) ~~(collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation~~ arising out of or based ~~upon: (i)~~ upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular prepared by Amicus in connection with the registration and/or offering of the Registrable Securities (as amended or supplemented if Amicus shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, except ~~in each case~~ insofar as ~~such statements~~ the same are caused by or ~~omissions arise out of or are based upon (A)~~ contained in any ~~such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with~~ information ~~with respect to~~ concerning such Holder furnished in writing to ~~the Company~~ Amicus by such Holder ~~or its counsel~~ specifically and expressly for ~~use therein, (B) the use of any Prospectus after~~ inclusion in such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified partydocument. (b) ~~In connection with any Registration Statement filed pursuant hereto, each~~ Each Holder ~~of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders,~~ shall indemnify and hold ~~harmless~~harmless Amicus, ~~to the fullest extent permitted by law~~and its respective directors, ~~the Company~~officers, ~~each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities~~ employees and each ~~Person, if any,~~ Person who controls ~~the Company or such underwriter~~ Amicus (within the meaning of ~~Section 15 of~~ the Securities Act ~~or Section 20 of~~ and the Exchange Act) from and against any and all losses, claims, damages, liabilities and ~~their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation~~ expenses (including reasonable costs of investigation) arising out of or based upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular prepared by Amicus in connection with the registration and/or offering of the Registrable Securities (as amended or supplemented if Amicus shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, ~~but only to the extent that any~~ if such ~~untrue~~ statement or omission is was made in reliance on upon and in conformity with any information ~~with respect to~~ concerning such Holder furnished in writing to ~~the Company~~ Amicus by such Holder ~~or its counsel~~ specifically and expressly for use ~~therein~~in the preparation of such document; provided, however, that in no ~~Holder~~ event shall ~~be required to indemnify the Company or~~ any ~~other indemnified party~~ indemnity under this Section ~~12(b~~6.5(b) ~~with respect to any~~ be greater in amount ~~in excess of~~ than the aggregate dollar amount of the ~~total net~~ proceeds received by ~~such Holder from sales~~ all of the ~~Registrable Securities~~ Purchasers upon the sale of such ~~Holder under such Registration Statement~~Registrable Securities. (c) ~~Any~~ Each Person entitled to indemnification hereunder (the “Indemnified Party”) agrees to give prompt written notice to the indemnifying party (the “Indemnifying Party”) after the receipt by ~~such indemnified party~~ the Indemnified Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which ~~such indemnified party may~~ the Indemnified Party intends to claim indemnification or contribution pursuant to ~~this Agreement~~the Transaction Documents; provided, ~~provided~~ however, that the failure to ~~give such notification~~ so notify the Indemnifying Party shall not ~~affect~~ relieve the ~~obligations~~ Indemnifying Party of any liability that it may have to the ~~indemnifying party pursuant to this Section 12 except~~ Indemnified Party hereunder unless, and only to the extent that, such failure results in the ~~indemnifying party shall have been actually and materially prejudiced as a result~~ Indemnifying Party’s forfeiture of ~~such failure~~substantive rights or defenses. ~~In case~~ If notice of commencement of any such action ~~shall be brought against any indemnified party and it shall notify~~ is given to the ~~indemnifying party of the commencement thereof~~Indemnifying Party as above provided, the ~~indemnifying party~~ Indemnifying Party shall be entitled to participate ~~therein~~ in and, to the extent ~~that~~ it ~~shall~~ may wish, jointly with any other ~~indemnifying party~~ Indemnifying Party similarly notified, to assume the defense ~~thereof~~of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such ~~indemnified party,~~ Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any such action and ~~after notice from the indemnifying party to such indemnified party of its election so to assume~~ participate in the defense thereof, but the ~~indemnifying party shall not be liable to such indemnified party for any legal~~ fees and expenses of ~~other~~ such 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, ) shall be paid by the Indemnified Party unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) ~~more than one~~ the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense of such action with counsel ~~for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be~~ reasonably satisfactory to the ~~Company), (ii) more than one counsel for the underwriters~~ Indemnified Party in ~~an Underwritten Offering~~ its reasonable judgment or (iii) the named parties to any such action (including any impleaded parties) have been advised by such counsel that either (x) representation of such Indemnified Party and the Indemnifying Party by the same counsel would be inappropriate under applicable standards of professional conduct or (y) there may be one or more ~~than one counsel for~~ legal defenses available to it which are different from or additional to those available to the ~~Company~~Indemnifying Party. In either of such cases, ~~in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is~~ the Indemnifying Party shall not ~~entitled to, or elects not to,~~ have the right to assume the defense of ~~a claim~~ such action on behalf of such Indemnified Party. No Indemnifying Party shall be liable for any settlement entered into without its written consent (other than in the case where the Indemnifying Party is unconditionally released from liability and its rights are not adversely effected), which consent shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyunreasonably withheld. (d) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 6.5 from the Indemnifying Party pursuant to applicable law is unavailable to an ~~indemnified party~~ Indemnified Party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to ~~any Losses~~therein, then the ~~indemnifying party~~Indemnifying Party, in lieu of indemnifying such ~~indemnified party~~Indemnified Party, shall contribute to the amount paid or payable by such ~~indemnified party~~ Indemnified Party as a result of such ~~Losses~~ losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party in connection with the actions which resulted in such ~~Losses~~losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative ~~fault~~ faults of such ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue ~~statement~~ or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such ~~indemnifying party~~ Indemnifying Party or ~~indemnified party~~Indemnified Party, and the parties' ’ relative intent, ~~knowledge~~Knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the ~~Losses~~ losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in ~~Section 12(c~~Sections 6.5(a), (b) and (c), any legal or other ~~fees and~~ fees, charges or expenses reasonably incurred by such ~~indemnified~~ party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.5(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 in the immediately preceding paragraph. No Person guilty of an intentional or 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 parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d)Person. (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 3 contracts

Samples: Securities Purchase Agreement (Amicus Therapeutics, Inc.), Securities Purchase Agreement (Amicus Therapeutics, Inc.), Securities Purchase Agreement (Amicus Therapeutics, Inc.)

Indemnification; Contribution. (a) The Company ~~shall~~ agrees to indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each ~~Holder in~~ Indemnitee from and against any ~~offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering~~ and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and affiliates against all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) ~~(collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation~~ arising out of or based ~~upon: (i)~~ upon any untrue statement or alleged untrue statement of a material fact contained inin any prepricing prospectus, registration statement or prospectus or in any amendment or supplement thereto, or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, except ~~in each case~~ insofar as such ~~statements~~ losses, claims, damages, liabilities or ~~omissions~~ expenses arise out of or are based upon ~~(A)~~ any ~~such~~ untrue statement or omission or alleged untrue statement or omission which has been made therein or ~~alleged omission made~~ omitted therefrom in reliance on upon and in conformity with the information ~~with respect~~ relating to ~~such~~ a participating Holder furnished in writing to the Company by ~~such~~ or on behalf of a participating Holder ~~or its counsel~~ expressly for use ~~therein, (B) the use of~~ in connection therewith. The foregoing indemnity agreement shall be in addition to any ~~Prospectus after such time as the obligation of~~ liability which the Company ~~to keep effective the Registration Statement~~ may otherwise have. (b) If any action, suit or proceeding shall be brought against an Indemnitee in respect of which indemnity may be sought against the Company, such ~~Prospectus forms a part has expired~~ Indemnitee shall promptly notify the Company, and the Company shall assume the defense thereof, including the employment of counsel and payment of all fees and expenses. "The Indemnitee shall have the right to employ separate counsel in any such action, suit or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnitee unless (Cx) ~~the use of any Prospectus after such time as~~ the Company has agreed in writing to pay such fees and expenses, (y) the Company has failed to assume the defense and employ counsel, or (z) the named parties to any such action, suit or proceeding (including any impleaded parties) include both such Indemnitce and the Company, and such Indemnitee shall have been advised by its counsel that representation of such Indemnitee and the ~~Holders~~ Company by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which case the Company shall not have the right to assume the defense of such action, suit or proceeding on behalf of such Indemnitee). It is understood, however, that the ~~filing of an amendment or supplement thereto is required~~Company shall, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any one such ~~registration~~action, suit or proceeding or separate but substantially similar or related actions, suits or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of only one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnitees not having actual or potential differing interests among themselves, and that all such fees and expenses shall be reimbursed as they are incurred. ~~Notwithstanding the foregoing provisions of this Section 12(a), the~~ The Company shall not be liable to for any settlement of any such ~~Holder~~ action, suit or ~~underwriter~~ proceeding effected without its written consent, but if settled with such written consent, or ~~to any other indemnified party under~~ if there be a final judgment for the ~~indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made~~ plaintiff in any ~~Prospectus if either (i) (A)~~ such ~~Holder~~ action, suit or ~~underwriter failed~~ proceeding, the Company agrees to ~~send or deliver a copy of the Prospectus with or prior~~ indemnify and hold harmless such Indemnitee, to the ~~delivery~~ extent provided in the preceding paragraph, from and against any loss, claim, damage, liability or expense by reason of ~~written confirmation of the sale of Registrable Securities by~~ such ~~Holder~~ settlement or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified partyjudgment. (bc) ~~In connection with any Registration Statement filed pursuant hereto, each Holder~~ Each of ~~Registrable Securities to be covered thereby shall~~the participating Holders, severally and not ~~jointly with any other Holders~~jointly, agree to indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless the Company, ~~each Person~~its directors, ~~if any~~its officers who sign the registration statement, ~~who participates as an underwriter in~~ and any ~~offering and sale of Registrable Securities and each Person, if any,~~ person who controls the Company ~~or such underwriter~~ within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, ~~and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant~~ to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the ~~Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of~~ same extent as the foregoing ~~or necessary~~ indemnity from the Company to ~~make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading~~an Indemnitee, but only ~~to the extent that any such untrue statement or omission is made in reliance on and in conformity with information~~ with respect to information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in the registration statement, prospectus or any prepricing prospectus, or any amendment or supplement thereto. If any action, suit or proceeding shall be brought against the Company, any of its directors, any such officer, or any such controlling person based on the registration statement, prospectus or any prepricing prospectus, or any amendment or supplement thereto, and in respect of which indemnity may be sought against any Holder pursuant to this Section 9(c), such Holder shall have the rights and duties given to the Company by Section 9(b) hereof (except that if the Company shall have assumed the defense thereof such Holder ~~or its counsel specifically for use therein; provided, however, that no Holder~~ shall not be required to ~~indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount~~ do so, but may employ separate counsel therein and participate in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such ~~additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one~~ counsel ~~for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection~~ shall be ~~reasonably satisfactory to~~ at the ~~Company~~Holder's expense), ~~(ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for~~ and the Company, ~~in each case in connection with any one action or separate but similar or related actions. No indemnifying party~~its directors, ~~in defense of~~ any such ~~action~~officer, ~~suit, proceeding or investigation, shall, except with~~ and any such controlling person shall have the ~~consent of each indemnified party, consent~~ rights and duties given to an Indemnitee by Section 9(b) hereof. The foregoing indemnity agreement shall be in addition to any liability which the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyparticipating Holders may otherwise have. (d) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 9 is unavailable to an indemnified party ~~hereunder~~ under paragraphs (a) or (c) hereof in respect of any losses, claims, damages, liabilities or expenses referred to ~~any Losses,~~ therein. then ~~the~~ an indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such ~~Losses~~ losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the ~~indemnifying~~ Company and of the participating Holders in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities or expenses. The relative fault of the Company on the one hand and a participating Holder on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or by such participating Holder on the other hand and the parties' relative intent, knowledge, access or information and opportunity to correct or prevent such statement or omission. (e) The Company and the participating Holders agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by a pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(d) hereof. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities and expenses referred to in Section 9(d) hereof shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating any claim or defending any such action, suit or proceeding. Notwithstanding the ~~actions which resulted in such Losses~~provisions of this Section 8, ~~as well as any other relevant equitable considerations; provided, however, that~~ no participating Holder shall be required to contribute any amount in excess of the amount by which the proceeds to such participating Holder exceeds the amount of ~~the total net proceeds received~~ any damages which such participating Holder has otherwise been required to pay by ~~such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault~~ reason of such ~~indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any~~ untrue ~~statement~~ or alleged untrue statement ~~of a material fact~~ or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceedingomission. No ~~Person~~ person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~Person~~ person who was not guilty of such fraudulent misrepresentation. (f) No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding. (g) Any losses, claims, damages, liabilities or expenses for which an indemnified party is entitled to indemnification or contribution under this Section 9 shall be paid by the indemnifying party to the indemnified party as such losses, claims, damages, liabilities or expenses are incurred. The ~~parties agree that it would not be just~~ indemnity and ~~equitable if~~ contribution ~~pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to~~ agreements contained in this Section ~~12(d). If indemnification is available under this Section 12~~9 shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of an Indemnitee, the ~~indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a)~~ Company, its directors or ~~12(b)~~officers, ~~as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party~~ or any ~~other equitable consideration provided for in this Section 12(d).~~ person controlling the Company, and (eii) ~~The provisions of this Section 12 shall be in addition to~~ any ~~liability which any indemnifying party may have to any indemnified party and shall survive the~~ termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 3 contracts

Samples: Registration Rights Agreement (Shidler Jay H), Registration Rights Agreement (Royale Investments Inc), Registration Rights Agreement (Hamlin Clay W Iii)

Indemnification; Contribution. (a) The Company ~~shall~~ agrees to indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each ~~Holder in any offering or sale~~ seller of Registrable ~~Securities, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities~~Securities covered by a Registration Statement filed pursuant to this Agreement, and ~~each Person~~such seller's partners, ~~if any~~directors, officers, employees and any Person who controls such ~~Holder or such underwriter within the meaning of Section 15 of~~ seller under the Securities Act ~~or Section 20 of the Exchange Act~~ (each, an "Indemnitee") from and ~~their respective directors, trustees, officers, partners, agents, employees~~ against any and ~~affiliates against~~ all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) ~~(collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation~~ arising out of or based ~~upon: (i)~~ upon any untrue statement or alleged untrue statement of a material fact contained inin any prepricing prospectus, registration statement or prospectus or in any amendment or supplement thereto, or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, except ~~in each case~~ insofar as such ~~statements~~ losses, claims, damages, liabilities or ~~omissions arise~~ expenses rise out of or are based upon ~~(A)~~ any ~~such~~ untrue statement or omission or alleged untrue statement or omission which has been made therein or ~~alleged omission made~~ omitted therefrom in reliance on upon and in conformity with the information ~~with respect~~ relating to ~~such~~ a participating Holder furnished in writing to the Company by ~~such~~ or on behalf of a participating Holder ~~or its counsel~~ expressly for use ~~therein, (B) the use of~~ in connection therewith. The foregoing indemnity agreement shall be in addition to any ~~Prospectus after such time as the obligation of~~ liability which the Company ~~to keep effective the Registration Statement~~ may otherwise have. (b) If any action, suit or proceeding shall be brought against an Indemnitee in respect of which indemnity may be sought against the Company, such ~~Prospectus forms a part has expired~~ Indemnitee shall promptly notify the Company, and the Company shall assume the defense thereof, including the employment of counsel and payment of all fees and expenses. The Indemnitee shall have the right to employ separate counsel in any such action, suit or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnitee unless (Cx) ~~the use of any Prospectus after such time as~~ the Company has agreed in writing to pay such fees and expenses, (y) the Company has failed to assume the defense and employ counsel, or (z) the named parties to any such action, suit or proceeding (including any impleaded parties) include both such Indemnitee and the Company, and such Indemnitee shall have been advised by its counsel that representation of such Indemnitee and the ~~Holders~~ Company by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which case the Company shall not have the right to assume the defense of such action, suit or proceeding on behalf of such Indemnitee). It is understood, however, that the ~~filing of an amendment or supplement thereto is required~~Company shall, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any one such ~~registration~~action, suit or proceeding or separate but substantially similar or related actions, suits or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of only one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnitees not having actual or potential differing interests among themselves, and that all such fees and expenses shall be reimbursed as they are incurred. ~~Notwithstanding the foregoing provisions of this Section 12(a), the~~ The Company shall not be liable to for any settlement of any such ~~Holder~~ action, suit or ~~underwriter~~ proceeding effected without its written consent, but if settled with such written consent, or ~~to any other indemnified party under~~ if them be a final judgment for the ~~indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made~~ plaintiff in any ~~Prospectus if either (i) (A)~~ such ~~Holder~~ action, suit or ~~underwriter failed~~ proceeding, the Company agrees to ~~send or deliver a copy of the Prospectus with or prior~~ indemnify and hold harmless such Indemnitee, to the ~~delivery~~ extent provided in the preceding paragraph, from and against any loss, claim, damage, liability or expense by reason of ~~written confirmation of the sale of Registrable Securities by~~ such ~~Holder~~ settlement or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified partyjudgment. (bc) ~~In connection with any Registration Statement filed pursuant hereto, each Holder~~ Each of ~~Registrable Securities to be covered thereby shall~~the participating Holders, severally and not ~~jointly with any other Holders~~jointly, agree to indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless the Company, ~~each Person~~its directors, ~~if any~~its officers who sign the registration statement, ~~who participates as an underwriter in~~ and any ~~offering and sale of Registrable Securities and each Person, if any,~~ person who controls the Company ~~or such underwriter~~ within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, ~~and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant~~ to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the ~~Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of~~ same extent as the foregoing ~~or necessary~~ indemnity from the Company to ~~make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading~~an Indemnitee, but only ~~to the extent that any such untrue statement or omission is made in reliance on and in conformity with information~~ with respect to information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in the registration statement, prospectus or any prepricing prospectus, or any amendment or supplement thereto. If any action, suit or proceeding shall be brought against the Company, any of its directors, any such officer, or any such controlling person based on the registration statement, prospectus or any prepricing prospectus, or any amendment or supplement thereto, and in respect of which indemnity may be sought against any Holder pursuant to this Section 9(c), such Holder shall have the rights and duties given to the Company by Section 9(b) hereof (except that if the Company shall have assumed the defense thereof such Holder ~~or its counsel specifically for use therein; provided, however, that no Holder~~ shall not be required to ~~indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount~~ do so, but may employ separate counsel therein and participate in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such ~~additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one~~ counsel ~~for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection~~ shall be ~~reasonably satisfactory to~~ at the ~~Company~~Holder's expense), ~~(ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for~~ and the Company, ~~in each case in connection with any one action or separate but similar or related actions. No indemnifying party~~its directors, ~~in defense of~~ any such ~~action~~officer, ~~suit, proceeding or investigation, shall, except with~~ and any such controlling person shall have the ~~consent of each indemnified party, consent~~ rights and duties given to an Indemnitee by Section 9(b) hereof. The foregoing indemnity agreement shall be in addition to any liability which the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyparticipating Holders may otherwise have. (d) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 9 is unavailable to an indemnified party ~~hereunder~~ under paragraphs (a) or (c) hereof in respect of any losses, claims, damages, liabilities or expenses referred to ~~any Losses~~therein, then ~~the~~ an indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such ~~Losses~~ losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the ~~indemnifying~~ Company and of the participating Holders in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities or expenses. The relative fault of the Company on the one hand and a participating Holder on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged -omission to state a material fact relates to information supplied by the Company on the one hand or by such participating Holder on the other hand and the parties' relative intent, knowledge, access or information and opportunity to correct or prevent such statement or omission. (e) The Company and the participating Holders agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by a pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(d) hereof. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities and expenses referred to in Section 9(d) hereof shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating any claim or defending any such action, suit or proceeding. Notwithstanding the ~~actions which resulted in such Losses~~provisions of this Section 9, ~~as well as any other relevant equitable considerations; provided, however, that~~ no participating Holder shall be required to contribute any amount in excess of the amount by which the proceeds to such participating Holder exceeds the amount of ~~the total net proceeds received~~ any damages which such participating Holder has otherwise been required to pay by ~~such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault~~ reason of such ~~indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any~~ untrue ~~statement~~ or alleged untrue statement ~~of a material fact~~ or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceedingomission. No ~~Person~~ person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~Person~~ person who was not guilty of such fraudulent misrepresentation. (f) No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an-unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding. (g) Any losses, claims, damages, liabilities or expenses for which an indemnified parry is entitled to indemnification or contribution under this Section 9 shall be paid by the indemnifying party to the indemnified party as such losses, claims, damages, liabilities or expenses are incurred. The ~~parties agree that it would not be just~~ indemnity and ~~equitable if~~ contribution ~~pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to~~ agreements contained in this Section ~~12(d). If indemnification is available under this Section 12~~9 shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of an Indemnitee, the ~~indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a)~~ Company, its directors or ~~12(b)~~officers, ~~as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party~~ or any ~~other equitable consideration provided for in this Section 12(d).~~ person controlling the Company, and (eii) ~~The provisions of this Section 12 shall be in addition to~~ any ~~liability which any indemnifying party may have to any indemnified party and shall survive the~~ termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 3 contracts

Samples: Registration Rights Agreement (Corporate Office Properties Trust), Registration Rights Agreement (Baltimore Gas & Electric Co), Registration Rights Agreement (Corporate Office Properties Trust)

Indemnification; Contribution. (a) ~~The Company~~ Amicus shall indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each Holder in any offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within (including the ~~meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners~~employees, agents, ~~employees~~ representatives, officers and ~~affiliates~~ directors of each Purchaser and its Affiliates) (each a “Purchaser Indemnitee”) from and against any and all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) ~~(collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation~~ arising out of of, directly or ~~based upon: (i)~~ indirectly, any ~~untrue or alleged~~ untrue statement of a material fact contained inin any Registration Statement or any other document filed in accordance with this Section 7, or any omission ~~or alleged omission of~~ to state therein a ~~material~~ fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading; provided, ~~except~~ however, that Amicus will not be liable in ~~each~~ any such case ~~insofar as~~ to the extent that any such ~~statements or omissions~~ Damages arise out of of, directly or ~~are based upon (A)~~ indirectly, any ~~such~~ untrue statement or ~~alleged untrue statement or omission or alleged omission~~ omission, made in reliance on upon and in conformity with written information ~~with respect to such Holder~~ furnished in writing to ~~the Company~~ Amicus by such Holder ~~or its counsel~~ specifically and expressly for ~~use therein, (B) the use of any Prospectus after~~ inclusion in such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified partydocument. (b) ~~In connection with any Registration Statement filed pursuant hereto, each~~ Each Holder ~~of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders,~~ shall indemnify and hold ~~harmless~~harmless Amicus, ~~to the fullest extent permitted by law~~and its respective directors, ~~the Company~~officers, ~~each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities~~ employees and each ~~Person, if any,~~ Person who controls ~~the Company or such underwriter~~ Amicus (within the meaning of ~~Section 15 of~~ the Securities Act ~~or Section 20 of~~ and the Exchange Act) from and against any and all losses, claims, damages, liabilities and ~~their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation~~ expenses (including reasonable costs of investigation) arising out of of, directly or ~~based upon~~ indirectly, any ~~untrue or alleged~~ untrue statement of a material fact contained inin any Registration Statement or any other document filed in accordance with this Section 7, or any omission ~~or alleged omission of~~ to state therein a ~~material~~ fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, ~~but only to the extent that any~~ if such ~~untrue~~ statement or omission is was made in reliance on upon and in conformity with any information ~~with respect to~~ concerning such Holder furnished in writing to ~~the Company~~ Amicus by such Holder ~~or its counsel~~ specifically for use ~~therein; provided, however, that no Holder shall be required to indemnify~~ in the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities preparation of such ~~Holder under such Registration Statement~~document. (c) ~~Any~~ Each Person entitled to indemnification hereunder (the “Indemnified Party”) agrees to give prompt written notice to the indemnifying party (the “Indemnifying Party”) after the receipt by ~~such indemnified party~~ the Indemnified Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which ~~such indemnified party may~~ the Indemnified Party intends to claim indemnification or contribution pursuant to ~~this Agreement~~the Transaction Documents; provided, ~~provided~~ however, that the failure to ~~give such notification~~ so notify the Indemnifying Party shall not ~~affect~~ relieve the ~~obligations~~ Indemnifying Party of any liability that it may have to the ~~indemnifying party pursuant to this Section 12 except~~ Indemnified Party hereunder unless, and only to the extent that, such failure results in the ~~indemnifying party shall have been actually and materially prejudiced as a result~~ Indemnifying Party’s forfeiture of ~~such failure~~substantive rights or defenses. ~~In case~~ If notice of commencement of any such action ~~shall be brought against any indemnified party and it shall notify~~ is given to the ~~indemnifying party of the commencement thereof~~Indemnifying Party as above provided, the ~~indemnifying party~~ Indemnifying Party shall be entitled to participate ~~therein~~ in and, to the extent ~~that~~ it ~~shall~~ may wish, jointly with any other ~~indemnifying party~~ Indemnifying Party similarly notified, to assume the defense ~~thereof~~of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such ~~indemnified party,~~ Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any such action and ~~after notice from the indemnifying party to such indemnified party of its election so to assume~~ participate in the defense thereof, but the ~~indemnifying party shall not be liable to such indemnified party for any legal~~ fees and expenses of ~~other~~ such 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, ) shall be paid by the Indemnified Party unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) ~~more than one~~ the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense of such action with counsel ~~for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be~~ reasonably satisfactory to the ~~Company), (ii) more than one counsel for the underwriters~~ Indemnified Party in ~~an Underwritten Offering~~ its reasonable judgment or (iii) the named parties to any such action (including any impleaded parties) have been advised by such counsel that either (x) representation of such Indemnified Party and the Indemnifying Party by the same counsel would be inappropriate under applicable standards of professional conduct or (y) there may be one or more ~~than one counsel for~~ legal defenses available to it which are different from or additional to those available to the ~~Company~~Indemnifying Party. In either of such cases, ~~in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is~~ the Indemnifying Party shall not ~~entitled to, or elects not to,~~ have the right to assume the defense of ~~a claim~~ such action on behalf of such Indemnified Party. No Indemnifying Party shall be liable for any settlement entered into without its written consent (other than in the case where the Indemnifying Party is unconditionally released from liability and its rights are not adversely effected), which consent shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyunreasonably withheld. (d) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 7.5 from the Indemnifying Party pursuant to applicable law is unavailable to an ~~indemnified party~~ Indemnified Party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to ~~any Losses~~therein, then the ~~indemnifying party~~Indemnifying Party, in lieu of indemnifying such ~~indemnified party~~Indemnified Party, shall contribute to the amount paid or payable by such ~~indemnified party~~ Indemnified Party as a result of such ~~Losses~~ losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party in connection with the actions which resulted in such ~~Losses~~losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative ~~fault~~ faults of such ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue ~~statement~~ or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such ~~indemnifying party~~ Indemnifying Party or ~~indemnified party~~Indemnified Party, and the parties' ’ relative intent, ~~knowledge~~Knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the ~~Losses~~ losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in ~~Section 12(c~~Sections 7.5(a), (b) and (c), any legal or other ~~fees and~~ fees, charges or expenses reasonably incurred by such ~~indemnified~~ party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.5(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 in the immediately preceding paragraph. No Person guilty of an intentional or 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 parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d)Person. (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 3 contracts

Samples: Note and Warrant Purchase Agreement, Note and Warrant Purchase Agreement (Amicus Therapeutics Inc), Note and Warrant Purchase Agreement (Amicus Therapeutics Inc)

Indemnification; Contribution. (a) The Company ~~shall~~ agrees to indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each Holder in any offering or sale of Registrable ~~Securities~~Securities pursuant to this Agreement, each Person, if any, who participates as an underwriter in any such offering and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and ~~affiliates~~ Affiliates against all losses, claims, damages, liabilities and expenses (including reasonable attorneys~~' fees, disbursements~~ ’ fees and expenses, as incurred, and any amounts paid in any settlement effected with the Company's ’s consent, which consent shall not be unreasonably withheld or delayed) (collectively, "“Losses"”) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based ~~upon: (i)~~ upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, ~~the~~ any Registration Statement, Prospectus, Free Writing Prospectus or ~~preliminary Prospectus~~ “issuer information” filed or ~~any amendment or supplement~~ required to ~~any of~~ be filed pursuant to Rule 433(d) under the ~~foregoing~~ Securities Act, or necessary to make the statements therein (in the case of a Prospectus, a Free Writing Prospectus or ~~a preliminary Prospectus,~~ “issuer information,” in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (Ai) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (Bii) the use of any Prospectus, Free Writing Prospectus or “issuer information” after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (Ciii) the use of any Prospectus, Free Writing Prospectus or “issuer information” after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus, Free Writing Prospectus or “issuer information” as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant ~~hereto~~to this Agreement, each Holder of holding Registrable Securities to be covered thereby ~~shall~~agrees, severally and not jointly with any other Holders, to indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless the Company, each Person, if any, who participates as an underwriter in any such offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and ~~affiliates~~Affiliates, against all Losses incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, ~~the~~ any Registration Statement, Prospectus, Free Writing Prospectus or ~~preliminary Prospectus~~ “issuer information” filed or ~~any amendment or supplement~~ required to ~~any of~~ be filed pursuant to Rule 433(d) under the ~~foregoing~~ Securities Act, or necessary to make the statements therein (in case of a Prospectus, a Free Writing Prospectus or ~~preliminary Prospectus,~~ “issuer information,” in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section ~~12(b~~13(b) with respect to any amount in excess of the amount of the ~~total net proceeds~~ gross proceeds, after deducting any underwriting discounts and commissions, received by such Holder ~~from sales~~ upon the sale of the Registrable Securities of giving rise to such ~~Holder under such Registration Statement~~indemnification obligation. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 13 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall ~~wish~~so elect, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of holding Registrable Securities who are indemnified parties, selected by the Holders of holding a ~~Majority~~ majority of the Registrable Securities held by all Holders who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (iA) more than one counsel for all Holders of holding Registrable Securities who are indemnified parties, selected by the Holders of holding a ~~Majority~~ majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (iiB) more than one counsel for the underwriters in an Underwritten Offering or (~~iii~~C) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 1213. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 12 13 is unavailable to an indemnified party hereunder in respect to of any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the ~~total net proceeds~~ gross proceeds, after deducting any underwriting discounts and commissions, received by such Holder ~~from sales~~ upon the sale of the Registrable Securities ~~of the Holder under the applicable Registration Statement~~giving rise to such contribution obligation. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other ~~things~~matters, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section ~~12(c~~13(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or 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. The parties agree that it would not be just and equitable if contribution pursuant to this Section ~~12(d~~13(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section ~~12(d~~13(d). If indemnification is available under this Section 1213, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section ~~12(a~~13(a) or ~~12(b~~Section 13(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section ~~12(d~~13(d). (e) The provisions of this Section 12 13 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 13 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 2 contracts

Samples: Registration Rights Agreement (SkyWater Technology, Inc), Registration Rights Agreement (SkyWater Technology, Inc)

Indemnification; Contribution. (a) The Company ~~shall~~ agrees to indemnify and hold ~~harmless, to~~ harmless the fullest extent permitted by law, each Holder in any offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities, Stockholders and each Person, if any, who controls ~~such Holder or such underwriter~~ the Stockholders within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Stockholder Indemnified Person”) against any and ~~their respective directors~~all loss, ~~trustees~~liability, ~~officers, partners, agents, employees~~ claim and ~~affiliates against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees, disbursements and expenses~~damage, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of ~~or based upon: (i)~~ any untrue statement or alleged untrue statement of a material fact contained inin any Registration Statement (or any amendment thereto), or ~~any~~ the omission or alleged omission therefrom of a material fact required to be stated intherein or necessary in order to make the statements therein, in light of the ~~Registration Statement~~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 any Prospectus ~~or preliminary Prospectus~~ (or any amendment or supplement to thereto) or Issuer Free Writing Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of ~~the foregoing or~~ a material fact necessary in order to make the statements ~~therein (in the case of a Prospectus or a preliminary Prospectus~~therein, in the light of the circumstances ~~then existing)~~ under which they were made, not misleading, ~~except~~ and agrees to reimburse any Stockholder Indemnified Person as promptly as practicable upon demand for any legal or other expenses reasonably incurred by such Stockholder Indemnified Person in ~~each case insofar as~~ connection with investigating, defending or paying any such ~~statements~~ loss, claim, damage, liability or ~~omissions arise~~ action; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim or damage to the extent arising out of ~~or are based upon (A)~~ any ~~such~~ untrue statement or omission or alleged untrue statement or omission ~~or alleged omission~~ made in reliance on upon and in conformity with information ~~with respect to such Holder~~ furnished ~~in writing~~ to the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the ~~Company with copies of the Prospectus as so amended~~ Stockholders or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Stockholders for use in any Registration Statement (or any amendment thereto), or any preliminary prospectus or Prospectus (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement thereto). (b) The Stockholders agree, jointly and severally, to indemnify and hold harmless the Company, and each person, if any, who controls the Company ~~or such underwriter~~ within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ~~Act~~Act against any and all loss, liability, claim and ~~their respective directors~~damage described in the indemnity contained in subsection (a) of this Section 6, ~~trustees~~as incurred, ~~officers~~but only with respect to untrue statements or omissions, ~~partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue~~ or alleged untrue ~~statement of a material fact contained in~~statements or omissions, made in any Registration Statement (or any ~~omission~~ amendment thereto) or ~~alleged omission of a material fact required to be stated in, the Registration Statement,~~ any preliminary prospectus or Prospectus ~~or preliminary Prospectus~~ (or any amendment or supplement ~~to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing~~thereto) ~~not misleading, but only to the extent that any such untrue statement or omission is made~~ in reliance on upon and in conformity with information ~~with respect to such Holder~~ furnished ~~in writing~~ to the Company by ~~such Holder~~ or ~~its counsel specifically~~ on behalf of the Stockholders for use ~~therein; provided, however, that no Holder shall be required to indemnify~~ in the ~~Company~~ Registration Statement (or any ~~other indemnified party under this Section 12(b~~amendment thereto) ~~with respect to~~ or such preliminary prospectus or Prospectus (or any ~~amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement~~amendment or supplement thereto). (c) ~~Any Person entitled~~ Each indemnified party shall give notice as promptly as reasonably practicable to ~~indemnification hereunder agrees to give prompt written notice to the~~ each indemnifying ~~party after the receipt by such indemnified~~ party of any ~~written notice~~ action or proceeding commenced against it in respect of ~~the commencement of any action~~which indemnity may be sought hereunder, ~~suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that~~ but failure to ~~give such notification~~ so notify an indemnifying party shall not ~~affect the obligations of the~~ relieve such indemnifying party ~~pursuant to this Section 12 except~~ from any liability hereunder to the extent ~~the indemnifying party shall have been actually and materially~~ it is not 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 ~~such failure~~these indemnity provisions. In case any such action shall be brought against any indemnified party and it shall notify ~~the~~ an indemnifying party of the commencement thereof, ~~the~~ such indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, ~~and~~ be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, ~~the~~ such indemnifying party shall not be liable to such indemnified party under this Section 6 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the~~ thereof. No indemnifying party ~~and such indemnified party and any other~~ shall, without the prior written consent of ~~such indemnified parties with respect to such claim, in which event~~ the ~~indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are~~ indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering settle or ~~(iii) more than one counsel for the Company, in each case in connection with any one action~~ compromise or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment with respect to any litigation, or ~~entry into~~ any ~~settlement~~ investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution is sought under this Section 6 (whether or not the indemnified parties are actual or potential parties 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 ~~unconditional term thereof the giving~~ admission of fault, culpability or a failure to act by ~~the claimant~~ or ~~plaintiff to such~~ on behalf of any indemnified ~~party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12~~party. No indemnified party ~~shall consent to entry of any judgment or entry into any settlement~~ shall, without the prior written consent of ~~each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then~~ the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as effect any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or 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. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course settlement of any ~~action~~commenced or threatened litigation, ~~suit~~investigation, proceeding or ~~investigation, as and when invoices are received or Losses are incurred~~claim in respect of which any indemnification is sought hereunder.

Appears in 2 contracts

Samples: Registration Rights Agreement (Stinehart William Jr), Registration Rights Agreement (Tribune Co)

Indemnification; Contribution. (a) ~~The~~ In connection with any registration of Registrable Securities pursuant to Section 6.01 or Section 6.02 hereof, the Company ~~shall~~ agrees to indemnify and hold harmless, to the fullest extent permitted by ~~law~~Law, each ~~Holder in any offering or sale of Registrable Securities~~Participating Stockholder, ~~each Person~~their Affiliates, ~~if any~~directors, ~~who participates as an underwriter in any offering~~ officers and ~~sale of Registrable Securities,~~ stockholders and each ~~Person, if any,~~ Person who controls each such ~~Holder or such underwriter~~ Participating Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”) against any and ~~their respective directors, trustees, officers, partners, agents, employees and affiliates against~~ all losses, claims, damages, liabilities and ~~expenses~~ expenses, joint or several (including reasonable attorneys' ’ fees~~, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~) ~~(collectively, "Losses") incurred~~ caused by ~~such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i)~~ any untrue or alleged untrue statement of a material fact contained inin any part of any Registration Statement, any preliminary or final prospectus used in connection with the Registrable Securities or any Issuer FWP, or any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein (in the case of a ~~Prospectus or a preliminary Prospectus~~prospectus, in the light of the circumstances ~~then existing~~under which they were made) not misleading; provided that the Company will not be required to indemnify any Indemnified Persons for any losses, ~~except in each case insofar as such statements~~ claims, damages, liabilities or ~~omissions arise out of or are based upon (A)~~ expenses resulting from any such untrue statement or ~~alleged~~ omission if such untrue statement or omission ~~or alleged omission~~ was made in reliance on and in conformity with any information with respect to ~~such Holder~~ any Indemnified Person furnished ~~in writing~~ to the Company in writing by ~~such Holder or its counsel~~ a Participating Stockholder expressly for use therein. In connection with an underwritten offering, the Company will indemnify each Underwriter, the officers and directors of such Underwriter, and each Person who controls such Underwriter (Bwithin the meaning of either the Securities Act or the Exchange Act) to the ~~use~~ same extent as provided above with respect to the indemnification of ~~any Prospectus after~~ the Participating Stockholders; provided that such ~~time~~ Underwriter agrees to indemnify the Company to the same extent as provided below with respect to the ~~obligation~~ indemnification of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified partyParticipating Stockholders. (b) In connection with any Registration ~~Statement filed pursuant hereto~~Statement, preliminary or final prospectus or Issuer FWP, each ~~Holder of Registrable Securities to be covered thereby shall~~Participating Stockholder, severally and not ~~jointly with any other Holders,~~ jointly. agrees to indemnify ~~and hold harmless, to the fullest extent permitted by law,~~ the Company, ~~each Person~~the Directors, ~~if any,~~ its officers who ~~participates as an underwriter in any offering and sale of Registrable Securities~~ sign such Registration Statement and each Person, if any, who controls the Company ~~or such underwriter~~ (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act~~, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant~~ ) to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the ~~Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of~~ same extent as the foregoing ~~or necessary~~ indemnity from the Company to ~~make~~ the ~~statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading~~Participating Stockholders, but only with respect to ~~the extent that any such untrue statement or omission is made in reliance on and in conformity with~~ information with respect to ~~such Holder~~ any Indemnified Person furnished ~~in writing~~ to the Company in writing by such ~~Holder or its counsel specifically~~ Participating Stockholder expressly for use ~~therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount~~ in ~~excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under~~ such Registration Statement, preliminary or final prospectus, or Issuer FWP. (c) ~~Any~~ In case any proceeding (including any governmental investigation) will be instituted involving any Person ~~entitled~~ in respect of which indemnity may be sought pursuant to ~~indemnification hereunder agrees to give prompt written notice~~ Section 6.08(a) or (b), such Person (hereinafter called the “indemnified party”) will promptly notify the Person against whom such indemnity may be sought (hereinafter called the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, will retain counsel reasonably satisfactory to the ~~indemnifying party after the receipt by such~~ indemnified party ~~of any written notice of~~ to represent the ~~commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such~~ indemnified party ~~may claim indemnification or contribution pursuant~~ and will pay the fees and disbursements of such counsel related to ~~this Agreement,~~ such proceeding; provided that failure to ~~give such notification~~ so notify an indemnifying party shall not ~~affect the obligations of the indemnifying party pursuant to this Section 12~~ relieve it from any liability which it may have hereunder, except to the extent that the indemnifying party ~~shall have been actually and~~ is materially prejudiced ~~as a result of~~ by such ~~failure~~failure to give notice. In ~~case~~ any such ~~action shall be brought against~~ proceeding, any indemnified party ~~and it shall notify~~ will have the ~~indemnifying party of the commencement thereof, the indemnifying party shall be entitled~~ right to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of retain its election so to assume the defense thereof, the indemnifying party shall not be liable to such 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, unless in the reasonable judgment of any indemnified party, based on the opinion of own counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for but the fees and expenses of such counsel will be at the expense of such indemnified party unless (i) ~~more than one counsel for all Holders of Registrable Securities who are~~ the indemnifying party and the indemnified ~~parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory~~ party will have mutually agreed to the ~~Company),~~ retention of such counsel or (ii) ~~more than one~~ the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party will have been advised in writing by counsel ~~for~~ that representation of both parties by the ~~underwriters in an Underwritten Offering~~ same counsel would be inappropriate due to actual or ~~(iii) more than one counsel for~~ potential conflicting interests between them. It is understood that the ~~Company~~indemnifying party will not, ~~in each case~~ in connection with any ~~one action or separate but similar~~ proceeding or related ~~actions. An indemnifying party who is not entitled to~~proceedings in the same jurisdiction, ~~or elects not to, assume~~ be liable for the ~~defense of a claim shall not be obligated to pay the~~ reasonable fees and expenses of more than one ~~counsel~~ separate firm of attorneys (in addition to any local counsel) at any time for all ~~parties~~ such indemnified parties, and that all such reasonable fees and expenses will be reimbursed as they are incurred. In the case of the retention of any such separate firm for the indemnified parties, such firm will be designated in writing by the indemnified parties. The indemnifying party will not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there has been 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 will have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by the third sentence of this Section 6.08(c), the indemnifying party agrees that it will be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 15 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party will not have reimbursed the indemnified party in accordance with ~~respect~~ such request or reasonably objected in writing, on the basis of the standards set forth herein, to the propriety of such ~~claim~~reimbursement prior to the date of such settlement. No indemnifying party will, ~~unless in~~ without the ~~reasonable judgment~~ prior written consent of ~~any~~ the indemnified party, ~~based on the opinion~~ effect any settlement of ~~counsel, a conflict~~ any pending or threatened proceeding in respect of ~~interest is likely to exist between an~~ which any indemnified party is or could have been a party and ~~any other~~ indemnity could have been sought hereunder by such indemnified party, unless such settlement is of a claim for monetary damages only, such claim has been settled by the payment of money only and such settlement includes an unconditional release of such indemnified ~~parties with respect to such claim, in which event the indemnifying~~ party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability ~~in respect to~~ on claims that are the subject matter of such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyproceeding. (d) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 6.08 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to ~~any Losses~~in this Section 6.08, then the indemnifying party, in lieu of indemnifying such indemnified party, ~~shall~~ will contribute to the amount paid or payable by such indemnified party as a result of such ~~Losses~~ losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions ~~which~~ that resulted in such ~~Losses~~losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party ~~shall~~ will be determined by reference to, among other things, whether any action in question, including any untrue ~~statement~~ or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the ~~Losses~~ losses, claims, damages, liabilities and expenses referred to above ~~shall~~ will be deemed to include, subject to the limitations set forth in Section ~~12(c~~6.08(c), any legal or other fees ~~and~~ or expenses reasonably incurred by such ~~indemnified~~ party in connection with any investigation or proceeding~~. No Person guilty of fraudulent misrepresentation~~ . (~~within the meaning of Section 11(f~~e) ~~of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.~~ The parties agree that it would not be just and equitable if contribution pursuant to ~~this~~ Section ~~12(d~~6.08(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the ~~consideration~~ equitable considerations referred to in Section 6.08(d). No Person guilty of “fraudulent misrepresentation” (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. (f) Notwithstanding the provisions of this Section ~~12(d).~~ 6.08, no Participating Stockholder shall be required to make any indemnification or contribution payment, in the aggregate, in any amount in excess of the amount of the net proceeds received by such Participating Stockholder with respect to the Registrable Securities. (g) If indemnification is available under this Section 126.08, the indemnifying ~~parties shall~~ party will indemnify each indemnified party to the full extent provided in ~~Section 12(a~~Sections 6.08(a) ~~or 12(b), as the case may be,~~ and (b) without regard to the relative fault of ~~such~~ said indemnifying ~~parties~~ party or indemnified party or any other equitable consideration provided for in ~~this~~ Section ~~12(d~~6.08(d) or (e). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 2 contracts

Samples: Stockholder Agreement, Stockholder Agreement (Realnetworks Inc)

Indemnification; Contribution. (a) ~~The~~ In connection with any registration of Registrable Securities pursuant to Section 3.01, Section 3.02 or Section 3.03 hereof, the Company ~~shall~~ agrees to indemnify and hold harmless, to the fullest extent permitted by ~~law~~Law, ~~each Holder in any offering or sale of Registrable Securities~~Tengelmann, ~~each Person~~its Affiliates, ~~if any~~directors, ~~who participates as an underwriter in any offering~~ officers and ~~sale of Registrable Securities,~~ stockholders and each ~~Person, if any,~~ Person who controls ~~such Holder or such underwriter~~ Tengelmann within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”) from and ~~their respective directors, trustees, officers, partners, agents, employees~~ against any and ~~affiliates against~~ all losses, claims, damages, ~~liabilities~~ liabilities, judgments, actions and expenses (including reasonable attorneys' ’ fees) joint or several, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, "Losses") incurred caused by ~~such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i)~~ any untrue or alleged untrue statement of a material fact contained inin any part of any Registration Statement or any preliminary or final prospectus used in connection with the Registrable Securities or any Issuer FWP, or any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein (in the case of a ~~Prospectus or a preliminary Prospectus~~prospectus, in the light of the circumstances ~~then existing~~under which they were made) not misleading; provided that the Company will not be required to indemnify any Indemnified Person for any losses, ~~except in each case insofar as such statements~~ claims, damages, liabilities, judgments, actions or ~~omissions arise out of or are based upon (A)~~ expenses resulting from any such untrue statement or ~~alleged~~ omission if such untrue statement or omission ~~or alleged omission~~ was made in reliance on and in conformity with information with respect to ~~such Holder~~ any Indemnified Person furnished ~~in writing~~ to the Company in writing by ~~such Holder or its counsel~~ Tengelmann expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration ~~Statement filed pursuant hereto~~Statement, ~~each Holder of Registrable Securities~~ preliminary or final prospectus, or Issuer FWP, Tengelmann agrees to ~~be covered thereby shall, severally and not jointly with any other Holders,~~ indemnify ~~and hold harmless, to the fullest extent permitted by law,~~ the Company, ~~each Person~~its Directors, ~~if any,~~ its officers who ~~participates as an underwriter in any offering and sale of Registrable Securities~~ sign such Registration Statement and each Person, if any, who controls the Company ~~or such underwriter~~ (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act~~, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant~~ ) to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the ~~Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of~~ same extent as the foregoing ~~or necessary~~ indemnity from the Company to ~~make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading~~Tengelmann, but only with respect to ~~the extent that any such untrue statement or omission is made in reliance on and in conformity with~~ information with respect to ~~such Holder~~ any Indemnified Person furnished ~~in writing~~ to the Company in writing by ~~such Holder or its counsel specifically~~ Tengelmann expressly for use ~~therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount~~ in ~~excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under~~ such Registration Statement, preliminary or final prospectus, or Issuer FWP. (c) ~~Any~~ In case any claim, action or proceeding (including any governmental investigation) is instituted involving any Person ~~entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party~~ in respect of ~~any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for~~ which ~~such indemnified party~~ indemnity may ~~claim indemnification or contribution~~ be sought pursuant to ~~this Agreement~~Section 3.08(a) or (b), such Person (hereinafter called the “indemnified party”) will (i) promptly notify the Person against whom such indemnity may be sought (hereinafter called the “indemnifying party”) in writing; provided that the failure to give such ~~notification~~ notice shall not ~~affect the obligations of~~ relieve the indemnifying party of its obligations pursuant to this ~~Section 12~~ Agreement except to the extent such indemnifying party has been prejudiced in any material respect by such failure; (ii) permit the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense ~~thereof~~of such claim, action or proceeding with counsel reasonably satisfactory to ~~such~~ the indemnified ~~party, and after notice from the indemnifying~~ party to ~~such indemnified party of its election so to assume~~ represent the defense thereof, the indemnifying party shall not be liable to such 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and ~~any other~~ (iii) pay the fees and disbursements of such ~~indemnified parties with respect~~ counsel related to such claim, ~~in which event~~ action or proceeding. In any such claim, action or proceeding, any indemnified party will have the ~~indemnifying party shall not be liable for~~ right to retain its own counsel, but the fees and expenses of such counsel will be at the expense of such indemnified party (iwithout prejudice to such indemnified party’s indemnity and other rights under the Charter, By-Laws and applicable Law, if any) ~~more than one counsel for all Holders~~ unless (A) the indemnifying party and the indemnified party have mutually agreed to the retention of ~~Registrable Securities who are~~ such counsel, (B) the named parties to any such claim, action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified ~~parties~~party and the indemnified party has been advised in writing by counsel, ~~selected~~ with a copy provided to the Company, that representation of both parties by the ~~Holders~~ same counsel would be inappropriate due to actual or potential conflicting interests between them or (C) the indemnifying party has failed to assume the defense of ~~a Majority of the Registrable Securities who are indemnified parties (which selection shall be~~ such claim and employ counsel reasonably satisfactory to the ~~Company)~~indemnified party. It is understood that the indemnifying party will not, ~~(ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case~~ in connection with any ~~one~~ claim, action or ~~separate but similar~~ proceeding or related ~~actions. An indemnifying party who is not entitled to~~claims, actions or ~~elects not to~~proceedings in the same jurisdiction, ~~assume~~ be liable for the ~~defense of a claim shall not be obligated to pay the~~ reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel at any time for all ~~parties~~ such indemnified parties) and that all such reasonable fees and expenses will be reimbursed reasonably promptly following a written request by an indemnified party stating under which clause of (A) through (C) above reimbursement is sought and delivery of documentation of such fees and expenses. In the case of the retention of any such separate firm for the indemnified parties, such firm will be designated in writing by the indemnified parties. The indemnifying party will not be liable for any settlement of any claim, action or proceeding effected without its written consent (which consent shall not be unreasonably withheld), but if such claim, action or proceeding is settled with such consent or if there has been 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 will have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by the third sentence of this Section 3.08(c), the indemnifying party agrees that it will be liable for any settlement of any proceeding 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 and (ii) such indemnifying party will not have reimbursed the indemnified party in accordance with ~~respect~~ such request or reasonably objected in writing, on the basis of the standards set forth herein, to the propriety of such ~~claim~~reimbursement prior to the date of such settlement. No indemnifying party will, ~~unless in~~ without the ~~reasonable judgment~~ prior written consent of ~~any~~ the indemnified party, ~~based on the opinion~~ effect any settlement of ~~counsel, a conflict~~ any pending or threatened proceeding in respect of ~~interest is likely to exist between an~~ which any indemnified party is or could have been a party and ~~any other~~ indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified ~~parties with respect to such claim, in which event the indemnifying~~ party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability ~~in respect to~~ on claims that are the subject matter of such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyproceeding. (d) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 3.08 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities, judgments, actions or expenses referred to ~~any Losses~~in this Section 3.08, then the indemnifying party, in lieu of indemnifying such indemnified party, ~~shall~~ will contribute to the amount paid or payable by such indemnified party as a result of such ~~Losses~~ losses, claims, damages, liabilities, judgments, actions or expenses (i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions ~~which~~ that resulted in such ~~Losses~~losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations~~; provided~~, ~~however~~or (ii) if the allocation provided by clause (i) is not permitted by applicable Law, ~~that no Holder shall be required~~ in such proportion as is appropriate to ~~contribute any amount~~ reflect not only the relative fault referred to in ~~excess~~ clause (i) but also the relative benefit of the ~~amount of~~ Company, on the ~~total net proceeds received by~~ one hand, and Tengelmann, on the other, in connection with the statements or omissions that resulted in such ~~Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement~~losses, claims, damages, liabilities, judgments, actions or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party ~~shall~~ will be determined by reference to, among other things, whether any action in question, including any untrue ~~statement~~ or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been ~~made~~ taken by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the ~~Losses~~ losses, claims, damages, liabilities and expenses referred to above ~~shall~~ will be deemed to include, subject to the limitations set forth in Section ~~12(c~~3.08(c), any legal or other fees ~~and~~ or expenses reasonably incurred by such ~~indemnified~~ party in connection with any investigation or proceeding~~. No Person guilty of fraudulent misrepresentation~~ . (~~within the meaning of Section 11(f~~e) ~~of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.~~ The parties agree that it would not be just and equitable if contribution pursuant to ~~this~~ Section ~~12(d~~3.08(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the ~~consideration~~ equitable considerations referred to in Section 3.08(d). No Person guilty of “fraudulent misrepresentation” (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. Notwithstanding the provisions of this Section ~~12(d~~3.08(e), Tengelmann shall not be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds received by Tengelmann with respect to the Registrable Securities exceed the greater of (A) the amount paid by Tengelmann for its Registrable Securities and (B) the amount of any damages which Tengelmann has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. (f) For purposes of this Section 3.08, each controlling Person of Tengelmann shall have the same rights to contribution as Tengelmann, and each officer, Director and Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall have the same rights to contribution as the Company, subject in each case to the limitations set forth in the immediately preceding paragraph. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this Section 3.08, notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from who contribution may be sought from any obligation it or they may have under this Section 3.08 or otherwise except to the extent that it has been prejudiced in any material respect by such failure. No party shall be liable for contribution with respect to any action or claim settled without its written consent; provided, however, that such written consent was not unreasonably withheld. (g) If indemnification is available under this Section 123.08, the indemnifying ~~parties shall~~ party will indemnify each indemnified party to the full extent provided in ~~Section 12(a~~Sections 3.08(a) ~~or 12(b), as the case may be,~~ and (b) without regard to the relative fault of ~~such~~ said indemnifying ~~parties~~ party or indemnified party or any other equitable consideration provided for in ~~this~~ Section ~~12(d~~3.08(d) or (e). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 2 contracts

Samples: Investment Agreement (Great Atlantic & Pacific Tea Co Inc), Stockholder Agreement (Great Atlantic & Pacific Tea Co Inc)

Indemnification; Contribution. (a) The Company ~~shall~~ agrees to indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each Holder in any offering or sale of Registrable ~~Securities~~Securities pursuant to this Agreement, each Person, if any, who participates as an underwriter in any such offering and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and ~~affiliates~~ Affiliates against all losses, claims, damages, liabilities and expenses (including reasonable attorneys~~' fees, disbursements~~ ’ fees and expenses, as incurred, and any amounts paid in any settlement effected with the Company's ’s consent, which consent shall not be unreasonably withheld or delayed) (collectively, "“Losses"”) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based ~~upon: (i)~~ upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, ~~the~~ any Registration Statement, Prospectus, Free Writing Prospectus or ~~preliminary Prospectus~~ “issuer information” filed or ~~any amendment or supplement~~ required to ~~any of~~ be filed pursuant to Rule 433(d) under the ~~foregoing~~ Securities Act, or necessary to make the statements therein (in the case of a Prospectus, a Free Writing Prospectus or ~~a preliminary Prospectus,~~ “issuer information,” in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (Ai) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (Bii) the use of any Prospectus, Free Writing Prospectus or “issuer information” after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (Ciii) the use of any Prospectus, Free Writing Prospectus or “issuer information” after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus, Free Writing Prospectus or “issuer information” as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant ~~hereto~~to this Agreement, each Holder of holding Registrable Securities to be covered thereby ~~shall~~agrees, severally and not jointly with any other Holders, to indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless the Company, each Person, if any, who participates as an underwriter in any such offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and ~~affiliates~~Affiliates, against all Losses incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, ~~the~~ any Registration Statement, Prospectus, Free Writing Prospectus or ~~preliminary Prospectus~~ “issuer information” filed or ~~any amendment or supplement~~ required to ~~any of~~ be filed pursuant to Rule 433(d) under the ~~foregoing~~ Securities Act, or necessary to make the statements therein (in case of a Prospectus, a Free Writing Prospectus or ~~preliminary Prospectus,~~ “issuer information,” in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the ~~total net proceeds~~ gross proceeds, after deducting any underwriting discounts and commissions, received by such Holder ~~from sales~~ upon the sale of the Registrable Securities of giving rise to such ~~Holder under such Registration Statement~~indemnification obligation. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall ~~wish~~so elect, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of holding Registrable Securities who are indemnified parties, selected by the Holders of holding a Majority of the Registrable Securities held by all Holders who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (iA) more than one counsel for all Holders of holding Registrable Securities who are indemnified parties, selected by the Holders of holding a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (iiB) more than one counsel for the underwriters in an Underwritten Offering or (~~iii~~C) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to of any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the ~~total net proceeds~~ gross proceeds, after deducting any underwriting discounts and commissions, received by such Holder ~~from sales~~ upon the sale of the Registrable Securities ~~of the Holder under the applicable Registration Statement~~giving rise to such contribution obligation. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other ~~things~~matters, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or 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. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 2 contracts

Samples: Registration Rights Agreement (SecureWorks Corp), Registration Rights Agreement (SecureWorks Corp)

Indemnification; Contribution. (a) Indemnification by the Company. The Company ~~shall indemnify~~ agrees to indemnity and hold harmless, to the ~~fullest~~ full extent permitted by law, each ~~Holder in any offering or sale of Registrable Securities~~Holder, ~~each Person~~its officers, ~~if any, who participates as an underwriter in any offering and sale of Registrable Securities,~~ directors and each ~~Person, if any,~~ Person who controls such Holder ~~or such underwriter~~ (within the meaning of ~~Section 15 of~~ the Securities ~~Act~~ Act), and any agent or ~~Section 20 of the Exchange Act and their respective directors~~investment adviser thereof, ~~trustees, officers, partners, agents, employees and affiliates~~ against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' ~~fees, disbursements~~ fees and ~~expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) ~~(collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation~~ arising out of or based ~~upon: (i)~~ upon any untrue or alleged untrue statement of a material fact contained inin any Registration Statement, any amendment or supplement thereto, any Prospectus or preliminary Prospectus or any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, except ~~in each case~~ insofar as ~~such statements or omissions~~ the same arise out of or are based upon ~~(A)~~ any such untrue statement or ~~alleged untrue statement or~~ omission ~~or alleged omission made in reliance on and in conformity with~~ based upon information with respect to such Holder furnished in writing to the Company by or on behalf of such Holder ~~or its counsel~~ expressly for use therein; provided that, ~~(B)~~ in the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders event that the ~~filing of an amendment~~ Prospectus shall have been amended or ~~supplement thereto is required, except such Prospectus~~ supplemented and copies thereof as so amended or supplemented~~; or (ii) any violation by~~ , shall have been furnished to a Holder prior to the ~~Company~~ confirmation of any ~~other federal or state securities laws or regulations applicable~~ sales of Registrable Securities, such indemnity with respect to the ~~Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company~~ Prospectus shall not ~~be liable~~ inure to ~~any~~ the benefit of such Holder if the Person asserting such loss, claim, damage or ~~underwriter or to any other indemnified party under~~ liability and who purchased the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) Registrable Securities from such ~~Holder or underwriter failed to send or deliver a copy of the Prospectus with~~ holder did not, at or prior to the ~~delivery of written~~ confirmation of the sale of the Registrable Securities by to such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omissionPerson, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies receive a copy of the Prospectus as so amended or supplemented ~~as required hereunder, such Holder~~ and the untrue statement or ~~underwriter thereafter fails to deliver such Prospectus,~~ omission of a material fact contained in the Prospectus was corrected in the Prospectus as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or 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. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Subscription Agreement (Velocity Asset Management Inc)

Indemnification; Contribution. (ai) ~~The Company shall~~ TAP agrees to indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each ~~Holder in~~ Indemnitee from and against any ~~offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering~~ and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and affiliates against all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) ~~(collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation~~ arising out of or based ~~upon: (i)~~ upon any untrue statement or alleged untrue statement of a material fact contained inin any prepricing prospectus, registration statement or prospectus or in any amendment or supplement thereto, or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, except ~~in each case~~ insofar as such ~~statements~~ losses, claims, damages, liabilities or ~~omissions~~ expenses arise out of or are based upon ~~(A)~~ any ~~such~~ untrue statement or omission or alleged untrue statement or omission which has been made therein or ~~alleged omission made~~ omitted therefrom in reliance on upon and in conformity with the information ~~with respect to such Holder~~ relating to-a Minority Stockholder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished TAP by or on behalf of ~~the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails~~ a Minority Stockholder expressly for use in connection therewith. The foregoing indemnity agreement shall be in addition to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from any liability which ~~such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party~~TAP may otherwise have. (bii) In If any action, suit or proceeding shall be brought against an Indemnitee in respect of which indemnity may be sought against TAP, such Indemnitee shall promptly notify TAP, and TAP shall assume the defense thereof, including the employment of counsel and payment of all fees and expenses. The Indemnitee shall have the right to employ separate counsel in any such action, suit or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnitee unless (x) TAP has agreed in writing to pay such fees and expenses, (y) TAP has failed to assume the defense and employ counsel, or (z) the named parties to any such action, suit or proceeding (including any impleaded parties include) both such Indemnitee and TAP, and such Indemnitee shall have been advised by its counsel that representation of such Indemnitee and TAP by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which case TAP shall not have the right to assume the defense of such action, suit or proceeding on behalf of such Indemnitee). It is understood, however, that TAP shall, in connection with any ~~Registration Statement filed pursuant hereto~~one such action, ~~each Holder~~ suit or proceeding or separate but substantially similar or related actions, suits or proceedings in the same jurisdiction arising out of ~~Registrable Securities~~ the same general allegations or circumstances, be liable for the reasonable fees and expenses of only one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnitees not having actual or potential differing interests among themselves, and that all such fees and expenses shall be ~~covered thereby shall~~reimbursed as they are incurred. TAP shall not be liable for any settlement of any such action, suit or proceeding effected without its written consent, but if settled with such written consent, or if there be a final judgment for the plaintiff in any such action, suit or proceeding, TAP agrees to indemnify and hold harmless such Indemnitee, to the extent provided in the preceding paragraph, from and against any loss, claim, damage, liability or expense by reason of such settlement or judgment. (iii) Each of the Minority Stockholders, severally and not ~~jointly with any other Holders~~jointly, agree to indemnify and hold ~~harmless~~harmless TAP, to its directors, its officers who sign the ~~fullest extent permitted by law~~registration statement, ~~the Company, each Person, if any, who participates as an underwriter in~~ and any ~~offering and sale of Registrable Securities and each Person, if any,~~ person who controls ~~the Company or such underwriter~~ TAP within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, ~~and their respective directors~~to the same extent as the foregoing indemnity from TAP to an Indemnitee, ~~trustees~~but only with respect to information relating to such Minority Stockholder furnished in writing by or on behalf of such Minority Stockholder expressly for use in the registration statement, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, prospectus or any ~~omission or alleged omission of a material fact required to be stated in~~prepricing prospectus, ~~the Registration Statement, Prospectus or preliminary Prospectus~~ or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of thereto. If any action, ~~suit~~suit or proceeding shall be brought against TAP, ~~proceeding~~ any of its directors, any such officer, or ~~investigation~~ any such controlling person based on the registration statement, prospectus or ~~threat thereof made~~ any prepricing prospectus, or any amendment or supplement thereto, and in ~~writing for~~ respect of which ~~such indemnified party~~ indemnity may ~~claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party~~ be sought against any Minority Stockholder pursuant to this Section ~~12 except to the extent the indemnifying party~~ 4(f)(iii), such Minority Stockholder shall have ~~been actually~~ the rights and ~~materially prejudiced as a result of~~ duties given to TAP by Section 4(f)(ii) hereof (except that if TAP shall have assumed the defense thereof such ~~failure. In case any such action~~ Minority Stockholder shall not be ~~brought against any indemnified party~~ required to do so, but may employ separate counsel therein and ~~it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to~~ participate ~~therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume~~ in the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such ~~additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one~~ counsel ~~for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection~~ shall be ~~reasonably satisfactory to~~ at the ~~Company~~Minority Stockholder's expense), ~~(ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company~~and TAP, ~~in each case in connection with any one action or separate but similar or related actions. No indemnifying party~~its directors, ~~in defense of~~ any such ~~action~~officer, ~~suit, proceeding or investigation, shall, except with~~ and any such controlling person shall have the ~~consent of each indemnified party, consent~~ rights and duties given to an Indemnitee by Section 4(f)(ii) hereof. The foregoing indemnity agreement shall be in addition to any liability which the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyMinority Stockholders may otherwise have. (div) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 4(f) is unavailable to an indemnified party ~~hereunder~~ under paragraphs (i) or (iii) hereof in respect of any losses, claims, damages, liabilities or expenses referred to ~~any Losses~~therein, then ~~the~~ an indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such ~~Losses~~ losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of TAP and of the ~~indemnifying party and indemnified party in~~ Minority Stockholders in-connection with the ~~actions which~~ statements or omissions that resulted in such ~~Losses~~losses, ~~as well as any other relevant equitable considerations; provided~~claims, ~~however~~damages, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statementliabilities or expenses. The relative fault of ~~such indemnifying party~~ TAP on the one hand and ~~indemnified party~~ a Minority Stockholder on the other hand shall be determined by reference to, among other things, whether ~~any action in question, including any~~ the untrue ~~statement~~ or alleged untrue statement of a material fact or the omission or alleged omission to state a material ~~fact, has been made by, or~~ fact relates to information supplied ~~by,~~ by TAP on the one hand or by such ~~indemnifying party or indemnified party,~~ Minority Stockholder on the other hand and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such ~~action~~statement or omission. (v) TAP and the Minority Stockholders agree that it would not be just and equitable if contribution pursuant to this Section 4(f) were determined by a pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in Section 4(f)(iv) hereof. The amount paid or payable by a an indemnified party as a result of the ~~Losses~~ losses, claims, damages, liabilities and expenses referred to ~~above~~ in Section 4(f)(iv) hereof shall be deemed to include, subject to the limitations set forth ~~in Section 12(c)~~above, any legal or other ~~fees and~~ expenses reasonably incurred by such indemnified party in connection with investigating any ~~investigation~~ claim or defending any such action, suit or proceeding. Notwithstanding the provisions of this Section 4(f), no Minority Stockholder shall be required to contribute any amount in excess of the amount by which the proceeds to such Minority Stockholder exceeds the amount of any damages which such Minority Stockholder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No ~~Person~~ person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~Person~~ person who was not guilty of such fraudulent misrepresentation. (vi) No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding. (vii) Any losses, claims, damages, liabilities or expenses for which an indemnified party is entitled to indemnification or contribution under this Section 4(f) shall be paid by the indemnifying party to the indemnified party -as such losses, claims, damages, liabilities or expenses are incurred. The ~~parties agree that it would not be just~~ indemnity and ~~equitable if~~ contribution ~~pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to~~ agreements contained in this Section ~~12(d). If indemnification is available under this Section 12~~4(f) shall remain operative and in full force and effect, ~~the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a~~regardless of (i) any investigation made by or ~~12(b)~~on behalf of an Indemnitee, ~~as the case may be~~TAP, ~~without regard to the relative fault of such indemnifying parties~~ its directors or ~~indemnified party~~ officers, or any ~~other equitable consideration provided for in this Section 12(d).~~ person controlling TAP, and (eii) ~~The provisions of this Section 12 shall be in addition to~~ any ~~liability which any indemnifying party may have to any indemnified party and shall survive the~~ termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Shareholder Agreement (Trident Partnership L P)

Indemnification; Contribution. (a) The Company ~~shall~~ agrees to indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each ~~Holder in~~ Indemnitee from and against any ~~offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering~~ and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and affiliates against all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) ~~(collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation~~ arising out of or based ~~upon: (i)~~ upon any untrue statement or alleged untrue statement of a material fact contained inin any prepricing prospectus, registration statement or prospectus or in any amendment or supplement thereto, or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, except ~~in each case~~ insofar as such ~~statements~~ losses, claims, damages, liabilities or ~~omissions~~ expenses arise out of or are based upon ~~(A)~~ any ~~such~~ untrue statement or omission or alleged untrue statement or omission which has been made therein or ~~alleged omission made~~ omitted therefrom in reliance on upon and in conformity with the information ~~with respect~~ relating to ~~such~~ a participating Holder furnished in writing to the Company by ~~such~~ or on behalf of a participating Holder ~~or its counsel~~ expressly for use ~~therein, (B) the use of~~ in connection therewith. The foregoing indemnity agreement shall be in addition to any ~~Prospectus after such time as the obligation of~~ liability which the Company ~~to keep effective the Registration Statement~~ may otherwise have. (b) If any action, suit or proceeding shall be brought against an Indemnitee in respect of which indemnity may be sought against the Company, such ~~Prospectus forms a part has expired~~ Indemnitee shall promptly notify the Company, and the Company shall assume the defense thereof, including the employment of counsel and payment of all fees and expenses. The Indemnitee shall have the right to employ separate counsel in any such action, suit or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnitee unless (Cx) ~~the use of any Prospectus after such time as~~ the Company has agreed in writing to pay such fees and expenses, (y) the Company has failed to assume the defense and employ counsel, or (z) the named parties to any such action, suit or proceeding (including any impleaded parties) include both such Indemnitee and the Company, and such Indemnitee shall have been advised by its counsel that representation of such Indemnitee and the ~~Holders~~ Company by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which case the Company shall not have the right to assume the defense of such action, suit or proceeding on behalf of such Indemnitee). It is understood, however, that the ~~filing of an amendment or supplement thereto is required~~Company shall, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any one such ~~registration~~action, suit or proceeding or separate but substantially similar or related actions, suits or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of only one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnitees not having actual or potential differing interests among themselves, and that all such fees and expenses shall be reimbursed as they are incurred. ~~Notwithstanding the foregoing provisions of this Section 12(a), the~~ The Company shall not be liable to for any settlement of any such ~~Holder~~ action, suit or ~~underwriter~~ proceeding effected without its written consent, but if settled with such written consent, or ~~to any other indemnified party under~~ if there be a final judgment for the ~~indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made~~ plaintiff in any ~~Prospectus if either (i) (A)~~ such ~~Holder~~ action, suit or ~~underwriter failed~~ proceeding, the Company agrees to ~~send or deliver a copy of the Prospectus with or prior~~ indemnify and hold harmless such Indemnitee, to the ~~delivery~~ extent provided in the preceding paragraph, from and against any loss, claim, damage, liability or expense by reason of ~~written confirmation of the sale of Registrable Securities by~~ such ~~Holder~~ settlement or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified partyjudgment. (bc) ~~In connection with any Registration Statement filed pursuant hereto, each Holder~~ Each of ~~Registrable Securities to be covered thereby shall~~the participating Holders, severally and not ~~jointly with any other Holders~~jointly, agree to indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless the Company, ~~each Person~~its directors, ~~if any~~its officers who sign the registration statement, ~~who participates as an underwriter in~~ and any ~~offering and sale of Registrable Securities and each Person, if any,~~ person who controls the Company ~~or such underwriter~~ within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, ~~and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant~~ to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the ~~Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of~~ same extent as the foregoing ~~or necessary~~ indemnity from the Company to ~~make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading~~an Indemnitee, but only ~~to the extent that any such untrue statement or omission is made in reliance on and in conformity with information~~ with respect to information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in the registration statement, prospectus or any prepricing prospectus, or any amendment or supplement thereto. If any action, suit or proceeding shall be brought against the Company, any of its directors, any such officer, or any such controlling person based on the registration statement, prospectus or any prepricing prospectus, or any amendment or supplement thereto, and in respect of which indemnity may be sought against any Holder pursuant to this Section 6(c), such Holder shall have the rights and duties given to the Company by Section 6(b) hereof (except that if the Company shall have assumed the defense thereof such Holder ~~or its counsel specifically for use therein; provided, however, that no Holder~~ shall not be required to ~~indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount~~ do so, but may employ separate counsel therein and participate in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such ~~additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one~~ counsel ~~for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection~~ shall be ~~reasonably satisfactory to~~ at the ~~Company~~Holder's expense), ~~(ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for~~ and the Company, ~~in each case in connection with any one action or separate but similar or related actions. No indemnifying party~~its directors, ~~in defense of~~ any such ~~action~~officer, ~~suit, proceeding or investigation, shall, except with~~ and any such controlling person shall have the ~~consent of each indemnified party, consent~~ rights and duties given to an Indemnitee by Section 6(b) hereof. The foregoing indemnity agreement shall be in addition to any liability which the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyparticipating Holders may otherwise have. (d) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 6 is unavailable to an indemnified party ~~hereunder~~ under paragraphs (a) or (c) hereof in respect of any losses, claims, damages, liabilities or expenses referred to ~~any Losses~~therein, then ~~the~~ an indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such ~~Losses~~ losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the ~~indemnifying~~ Company and of the participating Holders in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities or expenses. The relative fault of the Company on the one hand and a participating Holder on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or by such participating Holder on the other hand and the parties' relative intent, knowledge, access or information and opportunity to correct or prevent such statement or omission. (e) The Company and the participating Holders agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by a pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in Section 6(d) hereof. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities and expenses referred to in Section 6(d) hereof shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating any claim or defending any such action, suit or proceeding. Notwithstanding the ~~actions which resulted in such Losses~~provisions of this Section 6, ~~as well as any other relevant equitable considerations; provided, however, that~~ no participating Holder shall be required to contribute any amount in excess of the amount by which the proceeds to such participating Holder exceeds the amount of ~~the total net proceeds received~~ any damages which such participating Holder has otherwise been required to pay by ~~such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault~~ reason of such ~~indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any~~ untrue ~~statement~~ or alleged untrue statement ~~of a material fact~~ or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceedingomission. No ~~Person~~ person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~Person~~ person who was not guilty of such fraudulent misrepresentation. (f) No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding. (g) Any losses, claims, damages, liabilities or expenses for which an indemnified party is entitled to indemnification or contribution under this Section 6 shall be paid by the indemnifying party to the indemnified party as such losses, claims, damages, liabilities or expenses are incurred. The ~~parties agree that it would not be just~~ indemnity and ~~equitable if~~ contribution ~~pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to~~ agreements contained in this Section ~~12(d). If indemnification is available under this Section 12~~6 shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of an Indemnitee, the ~~indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a)~~ Company, its directors or ~~12(b)~~officers, ~~as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party~~ or any ~~other equitable consideration provided for in this Section 12(d).~~ person controlling the Company, and (eii) ~~The provisions of this Section 12 shall be in addition to~~ any ~~liability which any indemnifying party may have to any indemnified party and shall survive the~~ termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Registration Rights Agreement (Corporate Office Properties Trust)

Indemnification; Contribution. (a) ~~The Company~~ Amicus shall indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each Holder ~~in any offering or sale of Registrable Securities~~(including the partners, ~~each Person~~members, if any, who participates as an underwriter in any offering and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partnersemployees, agents, ~~employees~~ representatives, officers and ~~affiliates~~ directors of each Holder and its Affiliates) from and against any and all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) ~~(collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation~~ arising out of or based ~~upon: (i)~~ upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular prepared by Amicus in connection with the Registration and/or offering of the Registrable Securities (as amended or supplemented if Amicus shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, except ~~in each case~~ insofar as ~~such statements~~ the same are proximately caused by or ~~omissions arise out of or are based upon (A)~~ contained in any ~~such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with~~ information ~~with respect to~~ concerning such Holder furnished in writing to ~~the Company~~ Amicus by such Holder ~~or its counsel~~ specifically and expressly for ~~use therein, (B) the use of any Prospectus after~~ inclusion in such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified partydocument. (b) ~~In connection with any Registration Statement filed pursuant hereto, each~~ Each Holder ~~of Registrable Securities to be covered thereby~~ shall, severally and not ~~jointly with any other Holders~~jointly, indemnify and hold ~~harmless~~harmless Amicus, ~~to the fullest extent permitted by law~~and its respective directors, ~~the Company~~officers, ~~each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities~~ employees and each ~~Person, if any,~~ Person who controls ~~the Company or such underwriter~~ Amicus (within the meaning of ~~Section 15 of~~ the Securities Act ~~or Section 20 of~~ and the Exchange Act) from and against any and all losses, claims, damages, liabilities and ~~their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation~~ expenses (including reasonable costs of investigation) arising out of or based upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular prepared by Amicus in connection with the Registration and/or offering of the Registrable Securities (as amended or supplemented if Amicus shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, ~~but only to the extent that any~~ if such ~~untrue~~ statement or omission is was made in reliance on upon and in conformity with any information ~~with respect to~~ concerning such Holder furnished in writing to ~~the Company~~ Amicus by such Holder ~~or its counsel~~ specifically and expressly for use ~~therein~~in the preparation of such document; provided, however, that in no ~~Holder~~ event shall ~~be required to indemnify the Company or~~ any ~~other indemnified party~~ indemnity under this Section ~~12(b~~7.5(b) ~~with respect to any~~ be greater in amount ~~in excess of~~ than the aggregate dollar amount of the ~~total net~~ proceeds received by such Holder ~~from sales~~ upon the sale of ~~the~~ such Registrable Securities of pursuant to such ~~Holder under such Registration Statement~~document. (c) ~~Any~~ Each Person entitled to indemnification hereunder (the “Indemnified Party”) agrees to give prompt written notice to the indemnifying party (the “Indemnifying Party”) after the receipt by ~~such indemnified party~~ the Indemnified Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which ~~such indemnified party may~~ the Indemnified Party intends to claim indemnification or contribution pursuant to this Agreement; provided, ~~provided~~ however, that the failure to ~~give such notification~~ so notify the Indemnifying Party shall not ~~affect~~ relieve the ~~obligations~~ Indemnifying Party of any liability that it may have to the ~~indemnifying party pursuant to this Section 12 except~~ Indemnified Party hereunder unless, and only to the extent that, the ~~indemnifying party shall have been~~ Indemnifying Party is actually and materially prejudiced ~~as a result of~~ by such failure. ~~In case~~ If notice of commencement of any such action ~~shall be brought against any indemnified party and it shall notify~~ is given to the ~~indemnifying party of the commencement thereof~~Indemnifying Party as above provided, the ~~indemnifying party~~ Indemnifying Party shall be entitled to participate ~~therein~~ in and, to the extent ~~that~~ it ~~shall~~ may wish, jointly with any other ~~indemnifying party~~ Indemnifying Party similarly notified, to assume the defense ~~thereof~~of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such ~~indemnified party,~~ Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any such action and ~~after notice from the indemnifying party to such indemnified party of its election so to assume~~ participate in the defense thereof, but the ~~indemnifying party shall not be liable to such indemnified party for any legal~~ fees and expenses of ~~other~~ such 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, ) shall be paid by the Indemnified Party unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) ~~more than one~~ the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense of such action with counsel ~~for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be~~ reasonably satisfactory to the ~~Company), (ii) more than one counsel for the underwriters~~ Indemnified Party in ~~an Underwritten Offering~~ its reasonable judgment or (iii) the named parties to any such action (including any impleaded parties) have been advised by such counsel that either (x) representation of such Indemnified Party and the Indemnifying Party by the same counsel would be inappropriate under applicable standards of professional conduct or (y) there may be one or more ~~than one counsel for~~ legal defenses available to it that are different from or additional to those available to the ~~Company~~Indemnifying Party. In either of such cases in clause (iii) above, ~~in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is~~ the Indemnifying Party shall not ~~entitled to, or elects not to,~~ have the right to assume the defense of ~~a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by~~ such ~~indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based~~ action on ~~the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other~~ behalf of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actionsIndemnified Party. No ~~indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party,~~ Indemnifying Party shall consent to ~~the~~ entry of any judgment or ~~entry~~ enter into any settlement ~~which~~ that does not include as an unconditional term thereof the giving by the claimant or plaintiff to ~~such indemnified party~~ each Indemnified Party of a an unconditional release from all liability in respect to such ~~action~~claim or litigation, ~~suit~~or that contains any admission of wrongdoing by or on behalf of any Indemnified Party, ~~proceeding or investigation to~~ without the ~~extent~~ prior written consent of such ~~liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party~~ Indemnified Party, which consent shall not be unreasonably withheld; provided however, that an Indemnifying Party may consent to entry of any judgment or ~~entry~~ enter into any settlement that includes such a release and that does not contain such an admission without ~~the~~ consent of ~~each indemnifying party~~such Indemnified Party. No Indemnifying Party shall be liable for any settlement entered into without its written consent (other than in the case where the Indemnifying Party is unconditionally released from liability and its rights are not adversely effected), which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if at any time an Indemnified Party shall have requested that an Indemnifying Party reimburse the Indemnified Party for reasonable fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Party shall be liable for any settlement of any proceeding effected without its written consent if (x) such settlement is entered into in good faith more than sixty (60) days after receipt by the Indemnifying Party of such request and more than thirty (30) days after receipt of the proposed terms of such settlement and (y) if such reimbursement was actually due under this Agreement, the Indemnifying Party shall not have reimbursed the Indemnified Party in accordance with such request prior to the date of such settlement. (d) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 7.5 from the Indemnifying Party is unavailable to an ~~indemnified party~~ Indemnified Party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to ~~any Losses~~therein, then the ~~indemnifying party~~Indemnifying Party, in lieu of indemnifying such ~~indemnified party~~Indemnified Party, shall contribute to the amount paid or payable by such ~~indemnified party~~ Indemnified Party as a result of such ~~Losses~~ losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party in connection with the actions ~~which~~ that resulted in such ~~Losses~~losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative ~~fault~~ faults of such ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue ~~statement~~ or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such ~~indemnifying party~~ Indemnifying Party or ~~indemnified party~~Indemnified Party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the ~~Losses~~ losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in ~~Section 12(c~~Sections 7.5(a), (b) and (c), any legal or other ~~fees and~~ fees, charges or expenses reasonably incurred by such ~~indemnified~~ party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.5(d) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. No Person guilty of an intentional or 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~~Person. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account Notwithstanding the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The provisions of this ~~Section 12~~ Article 7, no Holder shall be required to contribute any amount greater in ~~addition to any liability which any indemnifying party may have to any indemnified party and shall survive~~ amount than the ~~termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments~~ aggregate dollar amount of the ~~amount thereof during~~ proceeds received by such Holder upon the ~~course~~ sale of ~~any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred~~such Registrable Securities pursuant to the applicable Registration Statement.

Appears in 1 contract

Samples: Securities Purchase Agreement (Amicus Therapeutics, Inc.)

Indemnification; Contribution. (a) The Company ~~shall indemnify~~ hereby indemnifies and ~~hold~~ holds harmless, to the fullest extent permitted by law, ~~each~~ Holder ~~in any offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities,~~ and each Person, if any, who controls ~~such~~ Holder ~~or such underwriter~~ within the meaning of Section 15 of the Securities Act or and Section 20 of the Exchange ~~Act and their respective directors~~Act, ~~trustees, officers, partners, agents, employees and affiliates~~ against all losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses (~~including reasonable attorneys' fees~~under the Securities Act, ~~disbursements~~ common law and ~~expenses~~otherwise), ~~as incurred, and any amounts paid in any settlement effected with the Company's consent~~joint or several, which ~~consent shall not be unreasonably withheld or delayed) (collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising~~ arise out of or are based ~~upon:~~ upon (i) any untrue statement or alleged untrue statement of a material fact contained inin the registration statement contemplated hereby or in any prospectus, preliminary prospectus, free-writing prospectus, any amendment or supplement thereto or any document incorporated by reference relating thereto or in any filing made in connection with the registration or qualification of the offering under “blue sky” or other securities laws of jurisdictions in which the Registrable Securities are offered, or any omission or alleged omission of to state therein a material fact required to be stated intherein, ~~the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ or necessary to make the statements ~~therein (in the case of a Prospectus or a preliminary Prospectus~~therein, in ~~the~~ light of the circumstances ~~then existing)~~ under which they were made, not misleading, ~~except~~ and the Company shall reimburse Holder for any legal or other expenses reasonably incurred by them in ~~each case insofar as~~ connection with investigating or defending any such ~~statements~~ loss, claim, damage, liability or ~~omissions arise out of or are based upon~~ proceeding, and (Aii) any ~~such~~ untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus or free-writing prospectus, if used prior to the effective date of such registration statement or contained in the final prospectus (as amended or supplemented if the Company shall have filed with the Commission any amendment thereof or supplement thereto) if used within the period during which the Company is required to keep the registration statement to which such prospectus relates current, or the omission or alleged omission ~~made~~ to state therein a material fact necessary in ~~reliance on and~~ order to make the statements therein in ~~conformity with~~ light of the circumstances under which they were made, not misleading; provided, however, that such indemnification shall not extend to any such losses, claims, damages, liabilities (or proceedings in respect thereof) or expenses that are caused by any untrue statement or alleged untrue statement contained in, or by any omission or alleged omission from, information ~~with respect to such Holder~~ furnished in writing to the Company by such Holder ~~or its counsel~~ in such capacity specifically and expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in ~~connection with~~ any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue registration statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified partyprospectus. (b) ~~In connection with any Registration Statement filed pursuant hereto, each~~ The Holder ~~of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify~~ hereby indemnifies and hold harmless, to the fullest extent permitted by law, the Company, ~~each Person~~its officers, ~~if any~~directors, ~~who participates as an underwriter in any offering and sale of Registrable Securities~~ employees, agents and each Person, if any, who controls the Company ~~or such underwriter~~ within the meaning of Section 15 of the Securities Act or and Section 20 of the Exchange Act, against any losses, claims, damages, liabilities (or proceedings in respect thereof) and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon expenses resulting from any untrue statement, or alleged untrue statement of a material ~~fact contained in~~fact, or any omission or alleged omission of a material fact required to be ~~stated in~~stated, ~~the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ or necessary to make the statements ~~therein (in case of a Prospectus or preliminary Prospectus,~~ in the ~~light of the circumstances then existing)~~ registration statement or prospectus, or any amendment thereof or supplement thereto, not misleading; provided, ~~but~~ however, that Holder shall be liable hereunder if and only to the extent that any such loss, claim, damage, liability (or proceeding in respect thereof) or expense arises out of or is based upon an untrue statement, or alleged untrue statement or omission is or alleged omission, made in reliance on upon and in conformity with information ~~with respect~~ pertaining to ~~such~~ Holder which is requested by the Company and furnished in writing to the Company by such Holder ~~or its counsel~~ specifically and expressly for use ~~therein; provided, however, that no Holder shall be required to indemnify the Company~~ in any such registration statement or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statementprospectus. (c) Any Person ~~entitled to~~ seeking indemnification ~~hereunder agrees to give prompt written notice to~~ under the ~~indemnifying party~~ provisions of this Section 7 shall, promptly after ~~the~~ receipt by such ~~indemnified party~~ Person of ~~any written~~ notice of the commencement of any action, suit, ~~proceeding~~ claim or ~~investigation or threat thereof made~~ proceeding, notify in writing ~~for which such indemnified~~ each party ~~may claim~~ against whom indemnification ~~or contribution pursuant~~ is to ~~this Agreement~~be sought of the commencement thereof; provided, ~~provided~~ however, that the failure so to ~~give such notification~~ notify an indemnifying party shall not ~~affect the obligations of~~ relieve the indemnifying party ~~pursuant to~~ from any liability which it or he may have under this Section 12 7 (except to the extent that it has been prejudiced in any material respect by such failure) or from any liability which the indemnifying party ~~shall have been actually and materially prejudiced as a result of such failure~~may otherwise have. In case any such ~~action shall be~~ action, suit, claim or proceeding is brought against any indemnified ~~party~~ party, and it ~~shall notify the~~ notifies an indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent ~~that~~ it ~~shall wish, jointly with any other indemnifying~~ or he may elect by written notice delivered to the indemnified party ~~similarly notified~~promptly after receiving the aforesaid notice from such indemnified party, to assume the defense ~~thereof,~~ thereof with counsel reasonably satisfactory to such indemnified party. Notwithstanding the foregoing, the indemnified party shall have the right to employ its own counsel in any such case, but the fees and ~~after notice from~~ expenses of such counsel shall be at the expense of such indemnified party unless (i) the employment of such counsel shall have been authorized in writing by the indemnifying party in connection with the defense of such suit, action, claim or proceeding, (ii) the indemnifying party shall not have employed counsel (reasonably satisfactory to the indemnified party) to take charge of the defense of such action, suit, claim or proceeding within a reasonable time after notice of commencement of the action, suit, claim or proceeding, or (iii) such indemnified party shall have reasonably concluded, based on the advice of counsel, that there may be defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and the indemnified party were to be represented by the same counsel, would result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party. If any of the events specified in clauses (i), (ii) or (iii) of the preceding sentence shall have occurred or shall otherwise be applicable, then the fees and expenses of one counsel selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party. If, in any case, the indemnified party ~~of its election so to assume the defense thereof~~employs separate counsel, the indemnifying party shall not ~~be liable~~ have the right to direct the defense of such ~~indemnified party for any legal expenses~~ action, suit, claim or proceeding on behalf of ~~other counsel or any other expenses, in each case subsequently incurred by such~~ the indemnified party. Anything in this paragraph to the contrary notwithstanding, in connection with the defense thereof other than reasonable costs of investigation, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the an indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment settlement of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, claim or proceeding ~~or investigation, shall, except with~~ effected without its prior written consent (which consent in the ~~consent~~ case of ~~each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as~~ an ~~unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such~~ action, suit, claim or proceeding exclusively seeking monetary relief shall not be unreasonably withheld or ~~investigation to the extent such liability is covered by the indemnity obligations set forth~~ delayed). Such indemnification shall remain in ~~this Section 12. No indemnified party shall consent to entry~~ full force and effect irrespective of any ~~judgment~~ investigation made by or ~~entry into any settlement without the consent~~ on behalf of ~~each indemnifying~~ an indemnified party. (d) If the indemnification from the indemnifying party as provided ~~for~~ in this Section 12 7 is unavailable or is otherwise insufficient to hold harmless an indemnified party ~~hereunder~~ in respect of any losses, claims, damages, liabilities or expenses referred to ~~any Losses~~therein, then the indemnifying ~~party, in lieu of indemnifying such indemnified party,~~ party shall contribute to the amount paid or payable by such indemnified party as a result of such ~~Losses~~ losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified ~~party~~ parties in connection with the actions which resulted in such ~~Losses~~losses, ~~as well as any other relevant equitable considerations; provided~~claims, ~~however~~damages, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statementliabilities or expenses. The relative fault of such indemnifying ~~party and indemnified~~ party shall be determined by reference to, among other things, whether any action in question, including any untrue ~~statement~~ (or alleged ~~untrue~~ untrue) statement of a material fact or omission (or alleged ~~omission~~ omission) to state a material fact, has been ~~made by~~made, or relates to information supplied ~~by,~~ by such indemnifying party or such indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the ~~Losses~~ losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section ~~12(c)~~7(d) hereof, any legal or other fees ~~and~~ or expenses reasonably incurred by such ~~indemnified~~ party in connection with any such investigation or proceeding. The parties hereto acknowledge 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 other than as described above. Notwithstanding the provisions of this Section 7(d), the Holder shall not be required to contribute any aggregate amount in excess of the amount by which the total price at which the Registrable Securities of such Holder were offered to the public exceed the amount of any damages which such Holder otherwise would have been required to pay or become liable to pay by reason of such untrue statement or omission unless such loss, claim, damage, liability (or proceeding in respect thereof) or expense arises out of or is based upon an untrue statement, or alleged untrue statement or omission or alleged omission, made in reliance upon and in conformity with information pertaining to Holder which is requested by the Company and furnished in writing to the Company by such Holder specifically and expressly for use in any such registration statement or prospectus. No ~~Person~~ person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~Person~~ person who was not guilty of such fraudulent misrepresentation. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If If, however, indemnification is available under this Section 127, the indemnifying parties shall indemnify each indemnified party to the ~~full~~ fullest extent provided in ~~Section 12(a~~Sections 7(a) ~~or 12(b), as the case may be,~~ through 7(d) hereof without regard to the relative fault of ~~such~~ said indemnifying ~~parties~~ party or indemnified party or any other equitable ~~consideration provided for in this Section 12(d)~~consideration. (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Warrant Registration Rights Agreement (Martha Stewart Living Omnimedia Inc)

Indemnification; Contribution. (a) ~~The Company shall indemnify and hold harmless, to the fullest extent permitted by law, each Holder in~~ In connection with any ~~offering or sale~~ registration of Registrable ~~Securities~~Securities pursuant to Section 2.01 or Section 2.02, the Company will indemnify, defend, hold harmless and reimburse each ~~Person~~Stockholder, ~~if any~~its Affiliates, ~~who participates as an underwriter in any offering~~ directors, officers, shareholders, employees, advisors and ~~sale of Registrable Securities,~~ representatives and each ~~Person, if any,~~ Person who controls such ~~Holder or such underwriter~~ Stockholders within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”) from and ~~their respective directors, trustees, officers, partners, agents, employees~~ against any and ~~affiliates against~~ all losses, claims, damages, ~~liabilities and expenses~~ liabilities, costs (including costs of preparation and reasonable attorneys~~' fees, disbursements and expenses, as incurred,~~ ’ fees and any ~~amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld~~ legal or ~~delayed) (collectively, "Losses")~~ other fees or expenses incurred by such party ~~pursuant to~~ in connection with any ~~actual~~ investigation or ~~threatened action~~proceeding), ~~suit~~expenses, ~~proceeding or investigation arising out of or based upon:~~ judgments, fines, penalties, charges and amounts paid in settlement (icollectively, “Losses”) caused by any untrue or alleged untrue statement of a material fact contained inor incorporated by reference in any part of any Registration Statement or any Prospectus, including any amendment or supplement thereto, used in connection with the Registrable Securities, or any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein (in the case of a ~~Prospectus or a preliminary~~ Prospectus, in the light of the circumstances ~~then existing~~under which they were made) not misleading~~, except in each case insofar as such statements or omissions arise out of or are based upon (A~~. The reimbursements required by this Section 2.09(a) ~~any such untrue statement or alleged untrue statement or omission or alleged omission~~ will be made ~~in reliance on and in conformity with information with respect to such Holder furnished in writing to~~ by periodic payments during the ~~Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation~~ course of the ~~Company to keep effective the Registration Statement of which such Prospectus forms a part has expired~~ investigation or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectusdefense, as ~~so amended~~ and when bills are received or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses ~~shall survive the transfer of the Registrable Securities by such indemnified party~~incurred. (b) In connection with any Registration Statement ~~filed pursuant hereto~~or Prospectus, ~~each Holder of~~ the Stockholders who sell Registrable Securities pursuant to ~~be covered thereby shall,~~ such Registration Statement or Prospectus will severally ~~and~~ but not jointly ~~with any other Holders~~indemnify, ~~indemnify~~ defend and hold ~~harmless, to the fullest extent permitted by law,~~ harmless the Company, ~~each Person~~its directors, ~~if any~~its officers, ~~who participates as an underwriter in any offering and sale of Registrable Securities~~ its employees and each Person, if any, who controls the Company ~~or such underwriter~~ (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as the foregoing indemnity from the Company to the Stockholders, ~~and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant~~ but only with respect to ~~any actual action, suit, proceeding or investigation~~ information arising out of or based upon information furnished by such Stockholder or on such Stockholder’s behalf (in each case, in its capacity as a Stockholder), in either case specifically for use in any ~~untrue or alleged untrue statement of a material fact contained in,~~ Registration Statement or any ~~omission or alleged omission of a material fact required to be stated in~~Prospectus, ~~the Registration Statement, Prospectus or preliminary Prospectus or~~ including any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use thereinthereto; provided, however, that ~~no Holder~~ such Stockholder shall not be ~~required~~ liable in any such case to ~~indemnify~~ the extent that prior to the filing of any such Registration Statement or Prospectus or amendment thereof or supplement thereto, such Stockholder has furnished to the Company in writing information expressly for use in such Registration Statement or Prospectus or any ~~other indemnified party under this Section 12(b) with respect~~ amendment thereof or supplement thereto which corrected or made not misleading information previously furnished to ~~any amount in excess of~~ the ~~amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement~~Company. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any claim, action or proceeding (including any governmental investigation) is instituted involving any Person in respect of which indemnity may be sought pursuant to Section 2.09(a) or Section 2.09(b), such ~~action shall be brought against any indemnified party and it shall~~ Person (the “Indemnified Party”) will promptly notify the ~~indemnifying party of~~ Person against whom such indemnity may be sought (the ~~commencement thereof,~~ “Indemnifying Party”) in writing and the ~~indemnifying party~~ Indemnifying Party shall be entitled to participate therein and, to the extent ~~that~~ it shall wish~~, jointly with any other indemnifying party similarly notified~~, to assume the defense ~~thereof,~~ thereof with counsel reasonably satisfactory to the Indemnified Party and will pay the fees and disbursements of such ~~indemnified party, and after notice from the indemnifying party~~ counsel related to such ~~indemnified party~~ proceeding; provided, however, that the failure or delay to give such notice shall not relieve the Indemnifying Party of its ~~election so~~ obligations pursuant to ~~assume~~ this Agreement except to the ~~defense thereof, the indemnifying party~~ extent that it shall ~~not~~ be ~~liable to~~ determined by a court of competent jurisdiction that such ~~indemnified party for any legal expenses of other counsel or any other expenses, in each case subsequently incurred~~ Indemnifying Party has been prejudiced by such ~~indemnified party, in connection with the defense thereof other than reasonable costs of investigation, unless in the reasonable judgment of~~ failure or delay. In any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, action or proceeding, the Indemnified Party shall have the right, but not the obligation, to participate in ~~which event the indemnifying party shall not be liable for~~ any such defense and to retain its own counsel, but the fees and expenses of such counsel will be at the expense of such Indemnified Party unless (i) ~~more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by~~ the ~~Holders of a Majority of~~ Indemnifying Party and the ~~Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory~~ Indemnified Party have mutually agreed to the ~~Company)~~retention of such counsel, (ii) ~~more than one counsel for~~ the ~~underwriters in an Underwritten Offering~~ Indemnifying Party fails to assume the defense of the claim, action or proceeding within fifteen (15) Business Days following receipt of notice from the Indemnified Party or (iii) ~~more than one~~ the Indemnified Party and the Indemnifying Party are both actual or potential defendants in, or targets of, any such action and the Indemnified Party has been advised by counsel ~~for~~ that representation of both parties by the ~~Company~~same counsel would be inappropriate due to actual or potential conflicting interests between them. It is understood that the Indemnifying Party will not, ~~in each case~~ in connection with any ~~one~~ claim, action or ~~separate but similar~~ proceeding or related ~~actions. An indemnifying party who is not entitled to~~claims, actions or ~~elects not to~~proceedings in the same jurisdiction, ~~assume~~ be liable for the ~~defense of a claim shall not be obligated to pay the~~ reasonable fees and expenses of more than one ~~counsel~~ (1) separate firm of attorneys (in addition to any local counsel) at any time for all ~~parties indemnified by~~ such ~~indemnifying party with respect to~~ Indemnified Parties and that all such ~~claim, unless in the~~ reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses will be reimbursed as they are incurred. In the case of the retention of any such ~~additional counsel~~separate firm for the Indemnified Parties, ~~provided that~~ such firm will be designated in writing by the ~~indemnifying party shall~~ Indemnified Parties. The Indemnifying Party will not be liable for any settlement of any claim, action or proceeding effected without its written consent (which consent shall not be unreasonably withheld, conditioned or delayed), but if such claim, action or proceeding is settled with such consent or if there has been a final judgment for the ~~fees~~ plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and ~~expenses~~ against any Loss by reason of ~~(i) more than one counsel for all Holders of Registrable Securities who are indemnified parties~~such settlement or judgment. No Indemnifying Party will, ~~selected by~~ without the ~~Holders of a Majority~~ prior written consent of the ~~Registrable Securities who are indemnified parties~~ Indemnified Party, settle, compromise or offer to settle or compromise any pending or threatened proceeding in respect of which any Indemnified Party is seeking indemnity hereunder, unless such settlement includes (~~which selection shall be reasonably satisfactory to the Company), (ii~~A) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional ~~term thereof the giving by the claimant or plaintiff to~~ release of such ~~indemnified party of a release~~ Indemnified Party from all liability in ~~respect to~~ connection with such ~~action~~proceeding, ~~suit, proceeding~~ (B) no finding or ~~investigation to~~ admission of any violation of law or any violation of the ~~extent such liability is covered~~ rights of any Person by the ~~indemnity obligations set forth~~ Indemnified Party or any of its Affiliates can be made as the result of such action and (C) the sole relief (if any) provided is monetary damages that are reimbursed in ~~this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without~~ full by the ~~consent of each indemnifying party~~Indemnifying Party. (d) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 2.09 from the Indemnifying Party is unavailable to an ~~indemnified party~~ Indemnified Party hereunder or is insufficient in respect of any Losses referred to ~~any Losses~~in this Section 2.09, then the ~~indemnifying party~~Indemnifying Party, in lieu of indemnifying such ~~indemnified party~~Indemnified Party, ~~shall~~ will contribute to the amount paid or payable by such ~~indemnified party~~ Indemnified Party as a result of such Losses (i) in such proportion as is appropriate to reflect the relative fault of the ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party in connection with the actions ~~which~~ that resulted in such Losses, as well as any other relevant equitable considerations~~; provided~~, ~~however~~or (ii) if the allocation provided by clause (i) is not permitted by applicable law, ~~that no Holder shall be required~~ in such proportion as is appropriate to ~~contribute any amount~~ reflect not only the relative fault referred to in ~~excess~~ clause (i), but also the relative benefit of the ~~amount of~~ Company, on the ~~total net proceeds received by~~ one hand, and such ~~Holder from sales of~~ Stockholder, on the ~~Registrable Securities of~~ other hand, in connection with the ~~Holder under the applicable Registration Statement~~statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations. The relative fault of such ~~indemnifying party~~ Indemnifying Party and ~~indemnified party shall~~ Indemnified Party will be determined by reference to, among other things, whether any action in question, including any untrue ~~statement~~ or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been ~~made~~ taken by, or relates to information supplied by, such ~~indemnifying party~~ Indemnifying Party or ~~indemnified party~~Indemnified Party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of the Losses referred to above ~~shall~~ will be deemed to include, subject to the limitations set forth in Section ~~12(c~~2.09(c), any reasonable legal or other out-of-pocket fees ~~and~~ or expenses reasonably incurred by such ~~indemnified~~ party in connection with any investigation or proceeding~~. No Person guilty of fraudulent misrepresentation~~ . (~~within the meaning of Section 11(f~~e) ~~of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.~~ The parties agree that it would not be just and equitable if contribution pursuant to ~~this~~ Section ~~12(d~~2.09(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the ~~consideration~~ equitable considerations referred to in ~~this~~ Section ~~12(d~~2.09(d). If No Person guilty of “fraudulent misrepresentation” (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In no event shall any Stockholder be obligated to provide indemnification ~~is available under this Section 12,~~ or contribution in excess of the ~~indemnifying parties shall indemnify each indemnified party~~ net aggregate proceeds received from the sale of Registrable Securities pursuant to the ~~full extent provided in Section 12(a)~~ applicable Registration Statement or ~~12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d)~~Prospectus. (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Registration Rights Agreement (Carbo Ceramics Inc)

Indemnification; Contribution. (a) Indemnification by the Company. The Company ~~shall~~ agrees to indemnify ------------------------------ and hold ~~harmless, to~~ harmless the ~~fullest extent permitted by law, each Holder in~~ Purchaser from and against any ~~offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering~~ and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and affiliates against all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) (collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i) any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or prospectus contained therein or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission to state therein a material ~~fact~~fact required to be stated therein or necessary to make the statements therein not misleading, ~~has been made by~~except insofar as such losses, claims, damages, liabilities or expenses arise out of, or ~~relates~~ are based upon, any such untrue statement or omission or allegation thereof based upon information furnished in writing to ~~information supplied by~~the Company by the Purchaser or on the Purchaser's behalf expressly for use therein and; provided, further, that with respect to -------- ------- any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus, the indemnity agreement contained in this subsection shall not apply to the extent that any such ~~indemnifying party~~ loss, claim, damage, liability or ~~indemnified party, and~~ expense results from the ~~parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by~~ fact that a ~~party as a result~~ current copy of the ~~Losses referred to above shall be deemed to include, subject~~ prospectus was not sent or given to the ~~limitations set forth in Section 12(c)~~person asserting any such loss, ~~any legal~~ claim, damage, liability or ~~other fees and expenses reasonably incurred by such indemnified party in connection with any investigation~~ expense at or ~~proceeding. No Person guilty of fraudulent misrepresentation (within~~ prior to the ~~meaning of Section 11(f)~~ written confirmation of the sale of the Registrable Securities ~~Act) shall be entitled~~ to ~~contribution from any Person who was not guilty of~~ such ~~fraudulent misrepresentation. The parties agree~~ person if it is determined that it ~~would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account~~ was the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments responsibility of the ~~amount thereof during~~ Purchaser to provide such person with a current copy of the ~~course~~ prospectus and such current copy of ~~any action~~the prospectus would have cured the defect giving rise to such loss, ~~suit~~claim, ~~proceeding~~ damage, liability or ~~investigation, as and when invoices are received or Losses are incurred~~expense.

Appears in 1 contract

Samples: Registration Rights Agreement (Miller Exploration Co)

Indemnification; Contribution. (a) The Company shall indemnify and hold harmless, to the fullest extent permitted by law, each Holder in any offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and affiliates against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i) any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby Purchaser shall, ~~severally and not jointly with any other Holders~~without limitation as to time, indemnify and hold harmless, to the ~~fullest~~ full extent permitted by law, the ~~Company~~Sole Shareholder and the officers, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, ~~trustees, officers, partners~~members, agents, and employees of the Sole Shareholder (each, an "Indemnified Party"), to the fullest extent lawful, from and ~~affiliates~~against any and all losses, ~~against all Losses incurred by such party pursuant to any actual action~~claims, ~~suit~~damages, ~~proceeding~~ liabilities, actions, or ~~investigation~~ proceedings (whether commenced or threatened) reasonable costs (including, without limitation, reasonable costs of preparation and reasonable attorneys' fees) and reasonable expenses (including reasonable expenses of investigation) (collectively, "Losses"), as incurred, arising out of or based upon any untrue or alleged untrue statement of a material fact contained inin any registration statement filed in connection with a Demand Registration or an Incidental Registration, any related prospectus or form of prospectus or in any amendment or supplements thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission of a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, except to the extent, but only to the ~~extent~~ extent, that ~~any~~ such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information so furnished in writing by the Sole Shareholder to the Purchaser expressly for use in such registration statement or prospectus and that such statement or omission ~~is made~~ was reasonably relied upon by Purchaser in ~~reliance on and in conformity with information with respect to~~ preparation of such ~~Holder furnished in writing to the Company by such Holder~~ registration statement, prospectus or ~~its counsel specifically for use therein~~form of prospectus; provided, however, that ~~no Holder~~ the Sole Shareholder shall not be ~~required~~ liable in any such case to ~~indemnify~~ the ~~Company~~ extent that the Sole Shareholder has furnished in writing to Purchaser within a reasonable period of time prior to the filing of any such registration statement or related prospectus or amendment or supplement thereto information expressly for use in such registration statement or prospectus or any ~~other indemnified party under this Section 12(b) with respect~~ amendment or supplement thereto which corrected or made not misleading, information previously furnished to ~~any amount in excess of the amount of the total net proceeds received by~~ Purchaser, and Purchaser failed to include such ~~Holder from sales of the Registrable Securities of such Holder under such Registration Statement~~information therein. (cii) Any ~~Person entitled to indemnification hereunder agrees to~~ Indemnified Party shall give prompt ~~written~~ notice to ~~the indemnifying party after the receipt by such indemnified party of any written notice~~ Purchaser of the commencement of any action, suit, ~~proceeding~~ proceeding, or investigation or written threat thereof ~~made in writing for~~ (a "Proceeding") with respect to which such ~~indemnified party may claim~~ Indemnified Party seeks indemnification or contribution pursuant ~~to this Agreement~~hereto; provided, ~~provided~~ however, that the failure to ~~give such notification~~ so notify Purchaser shall not ~~affect the obligations of the indemnifying party pursuant to this Section 12~~ relieve Purchaser from any obligation or liability except to the extent ~~the indemnifying party shall have~~ that Purchaser has been ~~actually and materially~~ prejudiced ~~as a result of~~ by such failure. ~~In case~~ Purchaser shall have the right, exercisable by giving written notice to an Indemnified Party promptly after the receipt of written notice from such Indemnified Party of such Proceeding, to assume, at the Purchaser's expense, the defense of any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereofProceeding, with counsel reasonably satisfactory to such ~~indemnified party~~Indemnified Party; provided, however, that an Indemnified Party or Indemnified Parties (if more than one such Indemnified Party is named in any Proceeding) shall have the right to employ separate counsel in any such Proceeding and ~~after notice from the indemnifying party~~ to ~~such indemnified party of its election so to assume~~ participate in the defense thereof, the indemnifying party shall not be liable to such 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such ~~additional counsel, provided that~~ counsel shall be at the ~~indemnifying party~~ expense of such Indemnified Party or Indemnified Parties. Purchaser shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to ~~the~~ entry of any judgment or ~~entry~~ enter into any settlement which (1) provides for other than monetary damages without the consent of the Indemnified Party or Indemnified Parties (which consent shall not be unreasonably withheld or delayed) or (2) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such ~~indemnified party~~ Indemnified Party or Indemnified Parties of a ~~release~~ release, in form and substance satisfactory to the Indemnified Party or Indemnified Parties, from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such ~~Losses in~~ Proceeding for which such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall Indemnified Party would be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d)hereunder. (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Stock Purchase Agreement (MLC Holdings Inc)

Indemnification; Contribution. ~~(a)~~ The ~~Company shall~~ Developer agrees to indemnify and hold ~~harmless~~harmless the Purchaser, to any director, officer, employee or controlling person of the fullest extent permitted by law, each Holder in any offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter Purchaser within the meaning of Section 15 of the ~~Securities~~ 1933 Act ~~or Section 20 of~~ (collectively, the ~~Exchange Act~~ “Indemnified Parties”), against any and ~~their respective directors, trustees, officers, partners, agents, employees and affiliates against~~ all losses, claims, damages, liabilities ~~and~~ or expenses (including reasonable attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, "Losses") incurred whatsoever caused by ~~such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i)~~ any untrue statements or ~~alleged untrue~~ misleading statement or allegedly misleading statement of a material fact contained ~~in,~~ in the Official Statement or caused by any omission or alleged omission from the Official Statement of a any material fact ~~required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or~~ necessary in order to make the statements ~~therein (in the case of a Prospectus or a preliminary Prospectus~~made therein, in the light of the circumstances ~~then existing)~~ under which they were made, not misleading~~, except in each case insofar as~~ ; provided that such indemnification shall be limited solely to statements or omissions ~~arise out of or are based upon~~ in the Official Statement: (Aa) ~~any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with~~ prepared from information ~~with respect to such Holder~~ furnished ~~in writing to~~ by the ~~Company by such Holder~~ Developer or its ~~counsel expressly for use therein~~agents (including, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is requiredwithout limitation, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a)its attorneys, the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omissionaccountants, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. consultants); (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to containing information about the ~~fullest extent permitted by law,~~ Developer or the ~~Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls~~ Developer’s intended plans for the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use thereinProject; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) ~~Any Person entitled~~ appearing in or pertaining to ~~indemnification hereunder agrees to give prompt written notice to~~ material appearing in the ~~indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding~~ following captions: “SUMMARY OF THE PROJECT,” “PLAN OF FINANCE FOR THE PROJECT,” “THE PROJECT,” “NO LITIGATION – The Developer,” or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. “APPENDIX B – THE MUSEUM.” In case any ~~such~~ action shall be brought against ~~any indemnified party~~ one or more of the Indemnified Parties based upon the Official Statement and it in respect of which indemnity may be sought against the Developer, the Indemnified Parties shall promptly notify the ~~indemnifying party of~~ Developer in writing and the ~~commencement thereof, the indemnifying party~~ Developer shall ~~be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to~~ promptly assume the defense thereof, ~~with~~ including the employment of counsel, the payment of all expenses and the right to negotiate and consent to settlement. Any one or more of the Indemnified Parties shall have the right to employ separate counsel ~~reasonably satisfactory~~ in any such action and to ~~such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume~~ participate in the defense thereof, the indemnifying party shall not be liable to such 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such ~~additional counsel, provided that~~ counsel shall be at the ~~indemnifying party~~ expense of such Indemnified Party or Indemnified Parties unless employment of such counsel has been specifically authorized by the Developer. The Developer shall not be liable for ~~the fees and expenses~~ any settlement of ~~(i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected~~ any such action effected without its consent by ~~the Holders of a Majority~~ any of the ~~Registrable Securities who are indemnified parties (which selection shall~~ Indemnified Parties, but if settled with the consent of the Developer or if there be ~~reasonably satisfactory to the Company), (ii) more than one counsel~~ a final judgment for the ~~underwriters~~ plaintiff in ~~an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of~~ any such action, ~~suit~~in which the Developer was provided timely notice, ~~proceeding~~ against the Developer or ~~investigation~~any of the Indemnified Parties, ~~shall, except~~ with ~~the consent of each indemnified party, consent to the entry of any judgment~~ or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of ~~each indemnifying party. (d)~~ the Developer, the Developer agrees to indemnify and hold harmless the Indemnified Parties to the extent provided herein. If ~~the~~ a claim for indemnification ~~from the indemnifying party provided for in~~ under this Section 12 is ~~unavailable~~ determined to ~~an indemnified party hereunder in respect to any Losses~~be unenforceable by a final judgment of a court of competent jurisdiction, then the ~~indemnifying party, in lieu of indemnifying such indemnified party,~~ Developer shall contribute to the ~~amount paid~~ aggregate losses, claims, damages or ~~payable by such indemnified party as a result of such Losses~~ liabilities to which the Purchaser or its officers, directors, agents, employees or controlling persons may be subject in such ~~proportion~~ amount as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds benefits received by ~~such Holder from sales of~~ the ~~Registrable Securities of~~ Developer, on the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified partyone hand, and the ~~parties'~~ Purchaser, on the other, and the relative ~~intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result~~ faults of the ~~Losses referred to above shall be deemed to include, subject to~~ Developer and the ~~limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding~~person seeking contribution. 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 parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section ~~12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and~~ shall survive the ~~termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments~~ delivery of the ~~amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred~~2012 Bonds hereunder.

Appears in 1 contract

Samples: Purchase Contract

Indemnification; Contribution. (a) The Company ~~shall~~ agrees to indemnify and hold ~~harmless~~harmless each Selling Member, to the fullest extent permitted by law, each Holder in any offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and affiliates against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i) any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter Selling Member within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and ~~their respective directors, trustees,~~ the officers, ~~partners~~directors, agents, general and limited partners, members (for Selling Members that are limited liability companies) and employees of each Selling Member and ~~affiliates~~each such controlling Person from and against any and all losses, ~~against all Losses incurred by such party pursuant to any actual action~~claims, ~~suit~~damages, ~~proceeding~~ liabilities (joint or several), and expenses (including reasonable costs of investigation and attorneys' fees) arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact contained in any registration statement or prospectus relating to the Registrable Units or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission to state therein a material ~~fact~~fact required to be stated therein or necessary to make the statements therein not misleading, ~~has been made by~~except insofar as such losses, claims, damages, liabilities or expenses arise out of, or ~~relates~~ are based upon and in conformity with, any such untrue statement or omission or allegation thereof based upon information furnished in writing to ~~information supplied by~~the Company by such Selling Member or on such Selling Member's behalf expressly for use therein. The Company also agrees to indemnify any underwriters of the Registrable Units, their officers and directors and each Person who controls such ~~indemnifying party or indemnified party~~underwriters on substantially the same basis as that of the indemnification of the Selling Members provided in this Section 12.6(a). (b) Each Selling Member agrees to indemnify and hold harmless each other Selling Member, the Company, and each Person, if any, who controls the ~~parties' relative intent, knowledge, access to information and opportunity to correct~~ Company or ~~prevent~~ such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. No Person guilty of fraudulent misrepresentation (Selling Member within the meaning of either Section ~~11(f)~~ 15 of the Securities ~~Act~~Act or Section 20 of the Exchange Act and the officers, directors, agents, general and limited partners, members (for Selling Members that are limited liability companies) and employees of each other Selling Member, the Company and each such controlling Person to the same extent as the foregoing indemnity from the Company to such Selling Member, but only with respect to information furnished in writing by such Selling Member or on such Selling Member's behalf expressly for use in any registration statement or prospectus relating to the Registrable Units. The liability of any Selling Member under this Section 12.6(b) shall be ~~entitled~~ limited to ~~contribution from any Person who was not guilty of~~ the aggregate cash and property received by such ~~fraudulent misrepresentation. The parties agree that it would not be just and equitable if contribution~~ Selling Member pursuant to ~~this Section 12(d) were determined~~ the sale of Registrable Units covered by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.registration statement or

Appears in 1 contract

Samples: Limited Liability Company Agreement (Leucadia National Corp)

Indemnification; Contribution. (a) Indemnification by the Company. The Company ~~shall~~ agrees to ------------------------------- indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each Designated Holder ~~in any offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities,~~ and each ~~Person, if any,~~ Person who controls ~~such Holder or such underwriter~~ (within the meaning of Section 15 of the Securities ~~Act or Section 20 of the Exchange Act~~ Act) such Designated Holder from and ~~their respective directors, trustees, officers, partners, agents, employees~~ against any and ~~affiliates against~~ all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) (collectively, "~~Losses~~Liabilities"~~) incurred by such party pursuant to any actual or threatened action~~), ~~suit, proceeding or investigation~~ ----------- arising out of or based ~~upon: (i)~~ upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of~~ not misleading under the circumstances ~~then existing) not misleading~~such statements were made, except ~~in each case~~ insofar as such ~~statements or omissions arise~~ Liability arises out of or ~~are~~ is based upon ~~(A)~~ any ~~such~~ untrue statement or alleged untrue statement or omission or alleged omission ~~made~~ contained in such Registration Statement, preliminary prospectus or final prospectus in reliance ~~on and in conformity with~~ upon information ~~with respect to~~ concerning such Designated Holder furnished in writing to the Company by such Designated Holder ~~or its counsel~~ expressly for use therein, ~~(B)~~ including, without limitation, the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable information furnished to the Company ~~and relating~~ pursuant to ~~action required~~ Section 8(b) or failure of ~~or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable~~ a Designated Holder to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue registration statement or ~~alleged untrue statement~~ prospectus or ~~such omission~~ any amendments or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of supplements thereto after the Company has furnished such Designated Holder with copies of the ~~Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails~~ same. The Company shall also provide customary indemnities to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer any underwriters of the Registrable ~~Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto~~Securities, ~~each Holder of Registrable Securities to be covered thereby shall~~their officers, ~~severally~~ directors and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities employees and each ~~Person, if any,~~ Person who controls ~~the Company or~~ such ~~underwriter~~ underwriters (within the meaning of Section 15 of the Securities ~~Act or Section 20 of the Exchange~~ Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) ~~not misleading, but only~~ to the same extent ~~that any such untrue statement or omission is made in reliance on and in conformity with information~~ as provided above with respect to ~~such Holder furnished in writing to~~ the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess indemnification of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Designated Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partySecurities. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or 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. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Registration Rights Agreement (Outboard Marine Corp)

Indemnification; Contribution. (a) ~~The Company shall indemnify and hold harmless~~In connection with any registration of Registrable 30 Securities pursuant to Section 3.01 or 3.02 hereof, Xxxxxxxx American agrees to indemnify, to the fullest extent permitted by law, ~~each Holder in any offering or sale of Registrable Securities~~B&W, ~~each Person~~its affiliates, ~~if any~~their directors, ~~who participates as an underwriter in any offering~~ officers and ~~sale of Registrable Securities,~~ shareholders and each ~~Person, if any,~~ Person who controls ~~such Holder or such underwriter~~ B&W (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ~~Act~~ Act) against any and ~~their respective directors, trustees, officers, partners, agents, employees and affiliates against~~ all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees~~, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~) ~~(collectively, "Losses") incurred~~ caused by ~~such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i)~~ any untrue or alleged untrue statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus contained therein, or any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein (in the case of a ~~Prospectus or a preliminary Prospectus~~prospectus, in the light of the circumstances ~~then existing~~under which they were made) not misleading; provided, ~~except in each case insofar as such statements~~ however, that Xxxxxxxx American shall not be required to indemnify B&W, its affiliates, their officers, directors, shareholders or ~~omissions arise out of~~ controlling Persons for any losses, claims, damages, liabilities or ~~are based upon (A)~~ expenses resulting from any such untrue statement or ~~alleged untrue statement or~~ omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with any information with respect to B&W or such ~~Holder~~ other parties furnished to Xxxxxxxx American in writing ~~to the Company~~ by B&W or such ~~Holder or its counsel specifically~~ other parties expressly for use therein. In connection with an underwritten offering, Xxxxxxxx American will indemnify each Underwriter, the officers and directors of such Underwriter, and each Person who controls such Underwriter (within the meaning of either the Securities Act or the Exchange Act) to the same extent as provided above with respect to the indemnification of B&W; provided, however, that ~~no Holder shall be required~~ such Underwriter agrees to indemnify Xxxxxxxx American to the ~~Company or any other indemnified party under this Section 12(b)~~ same extent as provided below with respect to the indemnification of Xxxxxxxx American by B&W. Notwithstanding the forgoing, with respect to any ~~amount~~ untrue statement or omission of material fact made in ~~excess~~ any prospectus or preliminary prospectus, the provisions of this Section 3.08 shall not inure to the ~~amount~~ benefit of any Investor Party, any other holder of Registrable Securities or any Underwriter from whom the ~~total net proceeds received by~~ Person asserting any such ~~Holder from sales of~~ loss, claim, damages, liabilities or expenses purchased the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall ~~wish~~be established that (i) any such loss, ~~jointly~~ claim, damages, liabilities or expenses of such Person arises primarily from the fact that any Investor Party or any Underwriter sold Registrable Securities to such a 31 Person, (ii) there was not sent or given a copy of the final prospectus (as amended or supplemented) at or prior to the written confirmation of such sale (provided Xxxxxxxx American shall have previously furnished a sufficient number of copies thereof on a timely basis to the Investor Parties, any such holder and each Underwriter, as the case may be, in accordance herewith) and (iii) the final prospectus (as amended or supplemented) would have corrected any such untrue statement or omission of a material fact. (b) In connection with any Registration Statement, the Investor Parties holding Registrable Securities, as the case may be, will furnish to Xxxxxxxx American in writing such information and affidavits with respect to the Investor Parties holding Registrable Securities, as the case may be, as Xxxxxxxx American reasonably requests, including, but not limited to, information relating to the Investor Parties, as the case may be, for use in connection with any such Registration Statement, prospectus or preliminary prospectus and agrees to indemnify Xxxxxxxx American, its directors, its officers who sign the Registration Statement and each Person, if any, who controls Xxxxxxxx American (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as the foregoing indemnity from Xxxxxxxx American to B&W, but only with respect to information relating to B&W or such other holders of Registrable Securities, as the case may be, furnished to Xxxxxxxx American in writing by B&W expressly for use in the Registration Statement, the prospectus, any amendment or supplement thereto, or any preliminary prospectus. (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 3.08(a) or (b), such Person (hereinafter called the indemnified party) shall promptly notify the Person against whom such indemnity may be sought (hereinafter called the indemnifying ~~party similarly notified~~party) in writing and the indemnifying party, ~~to assume~~ upon request of the ~~defense thereof~~indemnified party, ~~with~~ shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and shall pay the fees and disbursements of such counsel 32 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, and after notice from~~ party unless (i) the indemnifying party ~~to such~~ and the indemnified party shall have mutually agreed to the retention of ~~its election so~~ such counsel or (ii) the named parties to ~~assume~~ any such proceeding (including any impleaded parties) include both the ~~defense thereof,~~ indemnifying party and the indemnified party and the indemnified party shall have been advised by counsel that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall ~~not be liable to such indemnified party for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party~~not, in connection with ~~the defense thereof other than reasonable costs of investigation, unless~~ any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable ~~judgment~~ fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all such indemnified parties, and that all such reasonable fees and expenses shall be reimbursed as they are incurred. In the case of the retention of any such separate firm for the indemnified ~~party~~parties, ~~based on~~ such firm shall be designated in writing by the ~~opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such~~ indemnified ~~party and any other of such indemnified parties with respect to such claim, in which event the~~ parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, 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 reasonable fees and expenses of counsel as contemplated by the third sentence of this Section 3.08(c), 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 one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified 30 days after receipt by such indemnifying party ~~with respect to~~ of the aforesaid request and (ii) such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not ~~be liable for~~ have reimbursed the ~~fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are~~ indemnified ~~parties~~party in accordance with such request or reasonably objected in writing, ~~selected by~~ on the ~~Holders of a Majority~~ basis of the ~~Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory~~ standards set forth herein, to the ~~Company), (ii) more than one counsel for~~ propriety of such reimbursement prior to the ~~underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions~~date of such settlement. No indemnifying ~~party, in defense of any such action, suit, proceeding or investigation,~~ party shall, ~~except with~~ without the prior written consent of ~~each~~ the indemnified party, ~~consent to the entry~~ effect any settlement of any ~~judgment~~ pending or ~~entry into~~ threatened proceeding in respect of which any 33 indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement ~~which does not include as~~ includes an unconditional ~~term thereof the giving by the claimant or plaintiff to~~ release of such indemnified party ~~of a release~~ from all liability ~~in respect to~~ on claims that are the subject matter of such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyproceeding. (d) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 3.08 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to ~~any Losses~~in this Section 3.08, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such ~~Losses~~ losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions ~~which~~ that resulted in such ~~Losses~~losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue ~~statement~~ or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the ~~Losses~~ losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section ~~12(c~~3.08(c), any legal or other fees ~~and~~ or expenses reasonably incurred by such ~~indemnified~~ party in connection with any investigation or proceeding. The parties agree that it would not be just and equitable if contribution pursuant to this Section 3.08(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in this Section 3.08(d). 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 parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). 34 If indemnification is available under this Section 123.08, the indemnifying ~~parties~~ party shall indemnify each indemnified party to the full extent provided in ~~Section 12(a~~Sections 3.08(a) ~~or 12(b), as the case may be,~~ and (b) without regard to the relative fault of ~~such~~ said indemnifying ~~parties~~ party or indemnified party or any other equitable consideration provided for in this Section ~~12(d~~3.08(d). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Business Combination Agreement (Rj Reynolds Tobacco Holdings Inc)

Indemnification; Contribution. (a) Indemnification by the Company. The Company ~~shall~~ agrees to indemnify ------------------------------ and hold harmless, to the fullest extent permitted by law, each ~~Holder in any offering or sale of Registrable Securities~~Designated Holder, ~~each Person~~its officers, ~~if any~~directors, ~~who participates as an underwriter in any offering~~ trustees, partners, employees, advisors and ~~sale of Registrable Securities,~~ agents and each ~~Person, if any,~~ Person who controls ~~such Holder or such underwriter~~ (within the meaning ~~of Section 15~~ of the Securities Act or ~~Section 20 of~~ the Exchange ~~Act~~ Act) such Designated Holder from and ~~their respective directors, trustees, officers, partners, agents, employees~~ against any and ~~affiliates against~~ all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) ~~(collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation~~ arising out of or based ~~upon: (i)~~ upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, except ~~in each case~~ insofar as the same are caused by or contained in any information concerning such statements or omissions arise out of or are based upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Designated Holder furnished in writing to the Company by such Designated Holder ~~or its counsel~~ expressly for use therein, ~~(B)~~ including, without limitation, the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable information furnished to the Company ~~and relating~~ pursuant to ~~action required of or inaction by the Company in connection with any such registration~~Section 8(b). ~~Notwithstanding the foregoing provisions of this Section 12(a), the~~ The Company shall ~~not be liable~~ also provide customary indemnities to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer underwriters of the Registrable ~~Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto~~Securities, ~~each Holder of Registrable Securities to be covered thereby shall~~their officers, ~~severally~~ directors and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities employees and each ~~Person, if any,~~ Person who controls ~~the Company or~~ such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. No Person guilty of fraudulent misrepresentation (within the meaning of ~~Section 11(f~~the Securities Act and the Exchange Act) to the same extent as provided above with respect to the indemnification of the ~~Securities Act) shall be entitled to contribution from any Person who was not guilty~~ Designated Holders of such fraudulent misrepresentation. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d)Registrable Securities. (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Registration Rights Agreement (Synapse Group Inc)

Indemnification; Contribution. (a) The Company ~~shall~~ agrees to indemnify and hold harmless, to the fullest extent permitted by law, (i) each Holder ~~in any offering or sale of Registrable Securities~~and, as applicable, its affiliates, officers, directors, employees, representatives and agents (collectively, the “Holder Indemnified Persons”) and (ii) each ~~Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities, and each Person, if any,~~ Person who controls ~~such Holder or such underwriter~~ (within the meaning of Section 15 of the Securities Act or and Section 20 of the Exchange ~~Act~~ Act) any such Holder Indemnified Person, in each case, from and ~~their respective directors, trustees, officers, partners, agents, employees and affiliates~~ against all losses, claims, actions, judgments, damages, ~~liabilities~~ liabilities, costs and expenses, including reasonable expenses of investigation and reasonable attorneys’ fees and expenses (including reasonable attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, "“Losses"”) ~~incurred by such party pursuant to any actual or threatened action~~caused by, ~~suit, proceeding or investigation~~ arising out of of, resulting from, based on or ~~based upon:~~ relating to (iA) any untrue statement or alleged untrue statement of a material fact contained inin any Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement thereto, or any documents incorporated therein by reference, or (B) any omission or alleged omission of to state therein a material fact required to be stated intherein or necessary to make the statements therein not misleading, in each case, except insofar as the same are caused by any information furnished to the Company by any Holder Indemnified Persons or Underwriter Indemnified Person expressly for inclusion therein. In connection with an Underwritten Offering and without limiting any of the Company’s other obligations under this Agreement, the Company shall also provide customary indemnities to (i) such underwriters and their affiliates, officers, directors, employees, representatives and agents (collectively, the “Underwriter Indemnified Persons”) and (ii) each Person who controls (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) any such Underwriter Indemnified Person to the same extent as provided above with respect to the indemnification (and exceptions thereto) of the Holder Indemnified Person and the Person controlling such Holder Indemnified Persons, except insofar as the same are caused by any information furnished to the Company by any Holder Indemnified Persons or Underwriter Indemnified Person expressly for inclusion therein. (b) In connection with any Registration Statement in which a Holder of Registrable Shares is participating, each participating Holder will furnish to the Company in writing information regarding such Holder’s ownership of Registrable Shares and its intended method of distribution thereof and, to the fullest extent permitted by law, shall, severally and not jointly, indemnify (i) the Company and its affiliates, directors, officers, employees, representatives and agents (collectively, the “Company Indemnified Persons”) and (ii) each Person who controls (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) any such Company Indemnified Person against all Losses caused by (A) any untrue statement of material fact contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement thereto, or any documents incorporated therein by reference, or (B) any omission to ~~any of the foregoing~~ state therein a material fact required to be stated therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, ~~except~~ but, in each ~~case insofar as such statements or omissions arise out of or are based upon (A) any~~ case, only to the extent that such untrue statement or ~~alleged untrue statement or~~ omission ~~or alleged omission made in reliance on and in conformity with~~ is caused by any information ~~with respect to such Holder~~ furnished in writing ~~to the Company~~ by such Holder ~~or its counsel~~ Indemnified Person expressly for ~~use~~ inclusion therein; provided, ~~(B) the use of any Prospectus after such time as the~~ however, that each Holder’s obligation of to indemnify the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is requiredhereunder shall, ~~except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable~~ to the ~~Company and relating~~ extent more than one Holder is subject to ~~action required of or inaction by~~ the ~~Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a)~~same indemnification obligation, ~~the Company shall not~~ be ~~liable to any such~~ apportioned between each Holder ~~or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are~~ based upon ~~an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such~~ the net amount received by each Holder ~~or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of~~ from the sale of Registrable ~~Securities by such Holder or underwriter~~ Shares, as compared to the ~~Person asserting~~ total net amount received by all of the ~~claim from which~~ Holders holding Registrable Shares sold pursuant to such ~~Losses arise and (B)~~ Registration Statement. Notwithstanding the ~~Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission~~foregoing, ~~or (ii)~~ no Holder shall be liable to the Company for amounts in excess of the lesser of (x) such ~~untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus~~ apportionment and (y) ~~having previously been furnished by or on behalf of~~ the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities amount received by such ~~Holder or underwriter~~ holder in the offering giving rise to ~~the Person asserting the claim from which~~ such ~~Losses arise~~liability. ~~Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b)~~ In connection with an Underwritten Offering and without limiting any ~~Registration Statement filed pursuant hereto, each Holder~~ of ~~Registrable Securities to be covered thereby shall, severally and not jointly with any~~ the other ~~Holders, indemnify and hold harmless, to~~ obligations of the ~~fullest extent permitted by law~~Holders under this Agreement, the ~~Company,~~ Holders shall also provide customary indemnities to (i) such Underwriter Indemnified Persons and (ii) each ~~Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any,~~ Person who controls ~~the Company or such underwriter~~ (within the meaning of Section 15 of the Securities Act or and Section 20 of the Exchange Act~~, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by~~ ) any such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only Underwriter Indemnified Person to the same extent ~~that any such untrue statement or omission is made in reliance on and in conformity with information~~ as provided above with respect to ~~such Holder furnished in writing to~~ the indemnification (and exceptions thereto) of the Company by Indemnified Person and the Person controlling such ~~Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the~~ Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration StatementIndemnified Persons. (c) ~~Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party~~ Promptly after ~~the~~ receipt by ~~such~~ an indemnified party under Section 2.07(a) or Section 2.07(b) of ~~any~~ written notice of the commencement of any ~~action, suit,~~ action or proceeding ~~or investigation or threat thereof made in writing~~ for which indemnification under Section 2.07(a) or Section 2.07(b) may be requested, such indemnified party ~~may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification~~ shall ~~not affect the obligations of~~ notify the indemnifying party ~~pursuant~~ in writing of the commencement of such action or proceeding; but the omission so to ~~this Section 12 except to the extent~~ notify the indemnifying party shall not relieve it from any liability which it may have ~~been actually and~~ to any indemnified party in respect of such action or proceeding hereunder unless the indemnifying party was materially prejudiced ~~as a result~~ by such failure of the indemnified party to give such ~~failure~~notice, and in no event shall such omission relieve the indemnifying party from any other liability it may have to such indemnified party. In case any such action or proceeding shall be brought against any indemnified party and it shall notify ~~the~~ an indemnifying party of the commencement thereof, ~~the~~ such indemnifying party shall be entitled to participate therein and, to the extent that it shall ~~wish~~determine, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, ~~and~~ and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, ~~the~~ such indemnifying party shall not be liable to such indemnified party for any legal ~~expenses of other counsel~~ or any other ~~expenses, in each case~~ expenses subsequently incurred by such indemnified ~~party,~~ party in connection with the defense thereof other than reasonable costs of investigation; provided, ~~unless in the reasonable judgment of any indemnified party~~however, ~~based on the opinion of counsel, a conflict of interest is likely to exist between~~ that (i) if the indemnifying party ~~and~~ fails to take reasonable steps necessary to defend diligently the action or proceeding within 45 days after receiving notice from such indemnified party ~~and~~ that the indemnified party believes it has failed to do so; or (ii) if representation of both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, then, in any ~~other~~ such case, the indemnified party shall have the right to assume or continue its own defense as set forth above (but with no more than one firm of ~~such~~ counsel for all indemnified parties ~~with respect to such claim,~~ in ~~which event~~ each jurisdiction plus any necessary local counsel as determined by the indemnified party) and the indemnifying party shall ~~not~~ be liable for any expenses therefor (including, without limitation, any such reasonable counsel’s fees). If the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party ~~who~~ is not entitled to, or elects not to, assume the defense of a ~~claim shall~~ claim, it will not be obligated to pay the fees and expenses of more than one counsel for ~~all parties~~ each indemnified ~~by such indemnifying~~ party with respect to such claim. The indemnifying party will not be subject to any liability for any settlement made without its consent, ~~unless in~~ not to be unreasonably withheld or delayed. No indemnifying party shall, without the ~~reasonable judgment~~ prior written consent of ~~any~~ the indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering compromise or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or ~~entry~~ enter into any settlement ~~without~~ agreement with respect to any action or proceeding in respect of which indemnification is sought under Section 2.07(a) or Section 2.07(b) (whether or not the indemnified party is an actual or potential party thereto), unless such compromise, consent or settlement is solely for monetary damages and includes an unconditional release of ~~each indemnifying~~ the indemnified party from all liability in respect of such claim or litigation, and does not include a statement or admission of fault, culpability or a failure to act, by or on behalf of the indemnified party. (d) If ~~the indemnification from the indemnifying party provided for in this Section 12~~ recovery is ~~unavailable~~ not available or insufficient to hold harmless an indemnified party ~~hereunder~~ in respect of any Losses under the foregoing indemnification provisions for any reason or reasons other than as specified therein, any Person who would otherwise be entitled to indemnification by the terms thereof shall nevertheless be entitled to contribution with respect to any ~~Losses, then the indemnifying party, in lieu of indemnifying~~ Losses with respect to which such ~~indemnified party, shall contribute~~ Person would be entitled to ~~the amount paid~~ such indemnification but for such reason or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of reasons. In determining the amount of contribution to which the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party respective Persons are entitled, there shall be ~~determined by reference to~~considered the Persons’ relative fault, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, relative knowledge and ~~the parties' relative intent, knowledge,~~ access to information ~~and~~ concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement or ~~prevent~~ omission and other equitable considerations appropriate under the circumstances. It is hereby agreed that it would not necessarily be equitable if the amount of such ~~action. The amount paid~~ contribution were determined by pro rata or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceedingper capita allocation. 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 found guilty of such fraudulent misrepresentation. ~~The parties agree~~ Notwithstanding the foregoing, no Holder shall be required to make a contribution in excess of the net amount received by such holder from its sale of Registrable Shares in connection with the offering that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party gave rise to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d)contribution obligation. (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Registration Rights Agreement (Sandridge Energy Inc)

Indemnification; Contribution. (a) ~~The Company shall indemnify~~ In connection with any registration of Registrable Securities or Underwritten Offering pursuant to Section 2.01, Section 2.02 or Section 2.03, Boron will indemnify, defend and hold ~~harmless~~harmless each Shareholder, ~~to the fullest extent permitted by law~~its Affiliates, ~~each Holder in any offering or sale of Registrable Securities~~directors, ~~each Person~~officers, ~~if any, who participates as an underwriter in any offering~~ shareholders and ~~sale of Registrable Securities,~~ employees and each ~~Person, if any,~~ Person who controls such ~~Holder or such underwriter~~ Shareholders within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and affiliates against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, ~~"Losses"~~the “Indemnified Persons”) ~~incurred~~ from and against any and all Losses caused by ~~such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i)~~ any untrue or alleged untrue statement of a material fact contained inor incorporated by reference in any part of any Registration Statement or any Prospectus, including any amendment or supplement thereto, used in connection with the Registrable Securities, or any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein (in the case of a ~~Prospectus or a preliminary~~ Prospectus, in the light of the circumstances ~~then existing~~under which they were made) not misleading; provided, ~~except in each case insofar as~~ however, that Boron will not be required to indemnify any Indemnified Person for any such ~~statements or omissions arise~~ Loss arising out of or ~~are based upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information~~ with respect to ~~such Holder furnished in writing~~ sales pursuant to ~~the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective~~ the Registration Statement ~~of which such~~ or Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon ~~an untrue statement~~ information in the Registration Statement or ~~alleged untrue statement~~ Prospectus that was represented by Silicon or ~~omission or alleged omission made~~ Silicon Holdings as true and correct in ~~any Prospectus if either (i) (A)~~ the Merger Agreement, and with respect to which Xxxxx would not have been reasonably expected to discover the failure of such ~~Holder or underwriter failed~~ information to ~~send or deliver a copy of the Prospectus with or~~ be true and correct prior to the ~~delivery~~ date of ~~written confirmation of the sale of Registrable Securities by~~ such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified partysales. (b) In connection with any Registration Statement ~~filed pursuant hereto~~or Prospectus, ~~each Holder of~~ the Shareholders who sell Registrable Securities pursuant to ~~be covered thereby shall,~~ such Registration Statement or Prospectus will severally ~~and~~ but not jointly ~~with any other Holders~~indemnify, ~~indemnify~~ defend and hold ~~harmless~~harmless Boron, ~~to the fullest extent permitted by law~~its directors, ~~the Company~~its officers, ~~each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities~~ its employees and each Person, if any, who controls ~~the Company or such underwriter~~ Boron (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as the foregoing indemnity from Boron to the Shareholders, ~~and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant~~ but only with respect to ~~any actual action, suit, proceeding or investigation~~ information arising out of or based upon information furnished in writing by such Shareholder or on such Shareholder’s behalf (in each case, in its capacity as a Shareholder), in either case expressly for use in any ~~untrue or alleged untrue statement of a material fact contained in,~~ Registration Statement or any ~~omission or alleged omission of a material fact required to be stated in~~Prospectus, ~~the Registration Statement, Prospectus or preliminary Prospectus or~~ including any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statementthereto. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any claim, action or proceeding (including any governmental investigation) is instituted involving any Person in respect of which indemnity may be sought pursuant to Section 2.11(a) or Section 2.11(b), such ~~action shall be brought against any indemnified party and it shall~~ Person (the “Indemnified Party”) will promptly notify the ~~indemnifying party of~~ Person against whom such indemnity may be sought (the ~~commencement thereof,~~ “Indemnifying Party”) in writing and the ~~indemnifying party~~ Indemnifying Party shall be entitled to participate therein and, to the extent ~~that~~ it shall wish~~, jointly with any other indemnifying party similarly notified~~, to assume the defense ~~thereof,~~ thereof with counsel reasonably satisfactory to the Indemnified Party and will pay the fees and disbursements of such ~~indemnified party, and after notice from the indemnifying party~~ counsel related to such ~~indemnified party~~ proceeding; provided, however, that the failure or delay to give such notice shall not relieve the Indemnifying Party of its ~~election so~~ obligations pursuant to ~~assume~~ this Agreement except to the ~~defense thereof, the indemnifying party~~ extent that it shall ~~not~~ be ~~liable to~~ determined by a court of competent jurisdiction that such ~~indemnified party for any legal expenses of other counsel or any other expenses, in each case subsequently incurred~~ Indemnifying Party has been prejudiced by such ~~indemnified party, in connection with the defense thereof other than reasonable costs of investigation, unless in the reasonable judgment of~~ failure or delay. In any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, action or proceeding, the Indemnified Party shall have the right, but not the obligation, to participate in ~~which event the indemnifying party shall not be liable for~~ any such defense and to retain its own counsel, but the fees and expenses of such counsel will be at the expense of such Indemnified Party unless (i) ~~more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by~~ the ~~Holders of a Majority of~~ Indemnifying Party and the ~~Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory~~ Indemnified Party have mutually agreed to the ~~Company)~~retention of such counsel, (ii) ~~more than one counsel for~~ the ~~underwriters in an Underwritten Offering~~ Indemnifying Party fails to assume the defense of the claim, action or proceeding within fifteen (15) Business Days following receipt of notice from the Indemnified Party or (iii) ~~more than one~~ the Indemnified Party and the Indemnifying Party are both actual or potential defendants in, or targets of, any such action and the Indemnified Party has been advised by counsel ~~for~~ that representation of both parties by the ~~Company~~same counsel would be inappropriate due to actual or potential conflicting interests between them. It is understood that the Indemnifying Party will not, ~~in each case~~ in connection with any ~~one~~ claim, action or ~~separate but similar~~ proceeding or related ~~actions. An indemnifying party who is not entitled to~~claims, actions or ~~elects not to~~proceedings in the same jurisdiction, ~~assume~~ be liable for the ~~defense of a claim shall not be obligated to pay the~~ reasonable fees and expenses of more than one ~~counsel~~ (1) separate firm of attorneys (in addition to any local counsel) at any time for all ~~parties indemnified by~~ such ~~indemnifying party with respect to~~ Indemnified Parties and that all such ~~claim, unless in the~~ reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses will be reimbursed as they are incurred. In the case of the retention of any such ~~additional counsel~~separate firm for the Indemnified Parties, ~~provided that~~ such firm will be designated in writing by the ~~indemnifying party shall~~ Indemnified Parties. The Indemnifying Party will not be liable for any settlement of any claim, action or proceeding effected without its written consent (which consent shall not be unreasonably withheld, conditioned or delayed), but if such claim, action or proceeding is settled with such consent or if there has been a final judgment for the ~~fees~~ plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and ~~expenses~~ against any Loss by reason of such settlement or judgment. No Indemnifying Party will, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any pending or threatened proceeding in respect of which any Indemnified Party is seeking indemnity hereunder, unless such settlement includes (i) ~~more than one counsel for~~ an unconditional release of such Indemnified Party from all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company)liability in connection with such proceeding, (ii) ~~more than one counsel for~~ no finding or admission of any violation of Law or any violation of the ~~underwriters in an Underwritten Offering~~ rights of any Person by the Indemnified Party or any of its Affiliates can be made as the result of such action and (iii) ~~more than one counsel for~~ the ~~Company,~~ sole relief (if any) provided is monetary damages that are reimbursed in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving full by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyIndemnifying Party. (d) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 2.11 from the Indemnifying Party is unavailable to an ~~indemnified party~~ Indemnified Party hereunder or is insufficient in respect of any Losses referred to ~~any Losses~~in this Section 2.11, then the ~~indemnifying party~~Indemnifying Party, in lieu of indemnifying such ~~indemnified party~~Indemnified Party, ~~shall~~ will contribute to the amount paid or payable by such ~~indemnified party~~ Indemnified Party as a result of such Losses (i) in such proportion as is appropriate to reflect the relative fault of the ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party in connection with the actions ~~which~~ that resulted in such Losses, as well as any other relevant equitable considerations~~; provided~~, ~~however~~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 fault referred to in clause (i) but also the relative benefit of Boron, on the one hand, and such Shareholder, on the other, in connection with the statements or omissions that ~~no Holder shall be required to contribute~~ resulted in such Losses, as well as any ~~amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement~~other relevant equitable considerations. The relative fault of such ~~indemnifying party~~ Indemnifying Party and ~~indemnified party shall~~ Indemnified Party will be determined by reference to, among other things, whether any action in question, including any untrue ~~statement~~ or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been ~~made~~ taken by, or relates to information supplied by, such ~~indemnifying party~~ Indemnifying Party or ~~indemnified party~~Indemnified Party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of the Losses referred to above ~~shall~~ will be deemed to include, subject to the limitations set forth in Section ~~12(c~~2.11(c), any reasonable legal or other out of pocket fees ~~and~~ or expenses reasonably incurred by such ~~indemnified~~ party in connection with any investigation or proceeding~~. No Person guilty of fraudulent misrepresentation~~ . (~~within the meaning of Section 11(f~~e) ~~of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.~~ The parties agree that it would not be just and equitable if contribution pursuant to ~~this~~ Section ~~12(d~~2.11(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the ~~consideration~~ equitable considerations referred to in ~~this~~ Section ~~12(d~~2.11(d). If No Person guilty of “fraudulent misrepresentation” (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In no event shall any Shareholder be obligated to provide indemnification ~~is available under this Section 12,~~ or contribution in excess of the ~~indemnifying parties shall indemnify each indemnified party~~ net aggregate proceeds received from the sale of Registrable Securities pursuant to the ~~full extent provided in Section 12(a)~~ applicable Registration Statement or ~~12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d)~~Prospectus. (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Merger Agreement (Banner Corp)

Indemnification; Contribution. (a) Indemnification by the Company. The Company ~~shall~~ agrees to indemnify ------------------------------ and hold ~~harmless, to~~ harmless the ~~fullest extent permitted by law, each Holder in~~ Shareholders' Representative and the Shareholders from and against any ~~offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering~~ and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and affiliates against all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) (collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i) any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or prospectus contained therein or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission to state therein a material ~~fact~~fact required to be stated therein or necessary to make the statements therein not misleading, ~~has been made by~~except insofar as such losses, claims, damages, liabilities or expenses arise out of, or ~~relates~~ are based upon, any such untrue statement or omission or allegation thereof based upon information furnished in writing to ~~information supplied by~~the Company by the Shareholders' Representative or any Shareholder or on the Shareholders' behalf expressly for use therein and; provided, further, that with respect to any -------- ------- untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus, the indemnity agreement contained in this subsection shall not apply to the extent that any such ~~indemnifying party~~ loss, claim, damage, liability or ~~indemnified party, and~~ expense results from the ~~parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by~~ fact that a ~~party as a result~~ current copy of the ~~Losses referred to above shall be deemed to include, subject~~ prospectus was not sent or given to the ~~limitations set forth in Section 12(c)~~person asserting any such loss, ~~any legal~~ claim, damage, liability or ~~other fees and expenses reasonably incurred by such indemnified party in connection with any investigation~~ expense at or ~~proceeding. No Person guilty of fraudulent misrepresentation (within~~ prior to the ~~meaning of Section 11(f)~~ written confirmation of the sale of the Registrable Securities ~~Act) shall be entitled~~ to ~~contribution from any Person who was not guilty of~~ such ~~fraudulent misrepresentation. The parties agree~~ person if it is determined that it ~~would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account~~ was the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments responsibility of the ~~amount thereof during~~ Shareholders to provide such person with a current copy of the ~~course~~ prospectus and such current copy of ~~any action~~the prospectus would have cured the defect giving rise to such loss, ~~suit~~claim, ~~proceeding~~ damage, liability or ~~investigation, as and when invoices are received or Losses are incurred~~expense.

Appears in 1 contract

Samples: Registration Rights Agreement (Metasolv Inc)

Indemnification; Contribution. (a) The Company ~~shall~~ agrees to indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each ~~Holder in any offering or sale of Registrable Securities,~~ holder and each ~~Person,~~ "person," if any, ~~who participates as an underwriter in any offering and sale of Registrable Securities, and each Person, if any, who~~ that controls such ~~Holder or such underwriter~~ holder within the meaning of Section 15 of the Securities Act ~~or Section 20 of the Exchange Act~~ for, from and ~~their respective directors~~against any and all loss, ~~trustees~~liability, ~~officers~~claim, ~~partners, agents, employees~~ damage and ~~affiliates against all losses, claims, damages, liabilities and expenses~~ expense (including ~~reasonable~~ attorneys' fees~~, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with~~ ) to the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i) extent resulting from any untrue statement or alleged untrue statement of a material fact contained inin any Registration Statement pursuant to which Registrable Securities were registered under the Securities Act (or any amendment thereto), including all documents incorporated therein by reference, or ~~any~~ from the omission or alleged omission therefrom of a material fact required to be stated ~~in,~~ therein or necessary to make the ~~Registration Statement, Prospectus~~ statement therein not misleading or ~~preliminary Prospectus~~ arising out of any untrue statement or alleged untrue statement of a material fact contained in any prospectus (or any amendment or supplement ~~to any~~ thereto), including all documents incorporated therein by reference, or the omission or alleged omission therefrom of ~~the foregoing or~~ a material fact necessary in order to make the statements ~~therein (in the case of a Prospectus or a preliminary Prospectus~~therein, in the light of the circumstances ~~then existing)~~ under which they were made, not misleading, except ~~in each case~~ insofar as ~~such statements or omissions arise out of or are based upon (A)~~ any such ~~untrue statement or alleged untrue statement~~ misstatement or omission or alleged misstatement or omission is made therein in reliance on upon and in conformity with information ~~with respect to such Holder~~ furnished ~~in writing~~ to the Company by such ~~Holder or its counsel~~ holder in writing expressly for use ~~therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the~~ in a Registration Statement ~~of which such Prospectus forms a part has expired~~ (or any amendment thereto) or any prospectus (~~C) the use of~~ or any ~~Prospectus after such time as the Company has advised the Holders that the filing of an~~ amendment or supplement ~~thereto is required, except such Prospectus as so amended or supplemented; or (ii~~thereto) ~~any violation by the Company of any other federal or state securities laws or regulations applicable~~ relating to the ~~Company and relating to action required of or inaction by the Company~~ Registrable Securities. As used in ~~connection with any such registration. Notwithstanding the foregoing provisions of~~ this Section ~~12(a~~5.5(a), the ~~Company~~ term "holder" shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise include its officers, directors and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified partyagents. (b) ~~In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities~~ Each holder agrees to ~~be covered thereby shall, severally and not jointly with any other Holders,~~ indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless the Company, ~~each Person, if any, who participates as an underwriter in any offering~~ its directors and ~~sale of Registrable Securities~~ officers and each ~~Person,~~ "person," if any, who controls the Company ~~or such underwriter~~ within the meaning of Section 15 of the Securities Act ~~or Section 20 of~~ to the ~~Exchange Act~~same extent as the foregoing indemnity from the Company to such holder, ~~and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred~~ but only with respect to information furnished in writing by such ~~party pursuant to~~ holder or on such holder's behalf expressly for use in any ~~actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in,~~ Registration Statement (or any ~~omission~~ amendment thereto) or ~~alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus~~ any prospectus (or any amendment or supplement ~~to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing~~thereto) ~~not misleading, but only~~ relating to the ~~extent~~ Registrable Securities, or any amendment or supplement thereto; provided that the obligations or any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required holder to indemnify the Company ~~or any~~ and the other ~~indemnified party under this Section 12(b) with respect~~ persons referred to ~~any amount in excess of~~ above shall be limited to the ~~amount of the total net~~ proceeds received by such ~~Holder~~ holder from ~~sales~~ the sale of ~~the~~ such Registrable Securities ~~of such Holder under~~ pursuant to such Registration Statement.. 14 (c) ~~Any Person~~ If any action or proceeding (including any governmental investigation) shall be brought or asserted against any person entitled to indemnification ~~hereunder agrees to~~ hereunder, the indemnified party shall give prompt written notice to the indemnifying party, and the indemnifying party ~~after~~ shall assume the ~~receipt by~~ defense thereof, including the employment of counsel reasonably satisfactory to the indemnified party, and shall assume the payment of all expenses in connection with such defense. The indemnified party or any controlling person of such indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of ~~any written notice~~ such counsel shall be at the expense of the ~~commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such~~ indemnified party ~~may claim indemnification~~ or ~~contribution pursuant to this Agreement, provided that failure to give~~ such ~~notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent~~ controlling person unless (i) the indemnifying party shall have ~~been actually~~ agreed to pay such fees and ~~materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof,~~ expenses; or (ii) the indemnifying party shall ~~be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified,~~ have failed to assume the defense ~~thereof, with~~ for such action or proceeding and to employ counsel reasonably satisfactory to the indemnified party in any such action or proceeding; or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both the indemnified party or such controlling person and the indemnifying party, and ~~after notice from~~ such indemnified party or such controlling person shall have been advised by counsel that counsel employed by the indemnifying party to would, under applicable professional standards, have a conflict in representing both the indemnifying party and the indemnified party or such controlling person, in which case, if such indemnified person or such controlling person notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of ~~its election so to assume~~ the ~~defense thereof~~indemnifying party, the indemnifying party shall not ~~be liable~~ have the right to ~~such 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~~ assume the defense ~~thereof other than reasonable costs~~ of ~~investigation, unless~~ such action or proceeding of separate but substantially similar or related actions or proceedings in the ~~reasonable judgment~~ same jurisdiction arising out of ~~any indemnified party~~the same general allegations or circumstances, ~~based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party~~ and ~~such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party~~ shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the reasonable fees and expenses of more than one ~~counsel~~ separate firm of attorneys (together with appropriate local counsel) at any time for ~~all parties~~ such indemnified party and such controlling persons, which firm shall be designated, if the holders (or their controlling persons) are the indemnified parties, in writing by ~~such indemnifying party with respect~~ the holders of a majority of the outstanding Registrable Securities owned by holders who are then entitled to such ~~claim, unless~~ indemnity in connection with such action or proceeding and if the ~~reasonable judgment of any~~ Company is the indemnified party, ~~based on~~ by the ~~opinion~~ Company. No party shall be liable for any settlement of ~~counsel~~any such action or proceeding effected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent, or if there is a ~~conflict of interest is likely~~ final judgment for the plaintiff in any such action or proceeding, the indemnifying party agrees to ~~exist between an~~ indemnify and hold harmless such indemnified party and such controlling person from and against any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of loss or liability (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent stated above) by reason of such ~~liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment~~ settlement or ~~entry into any settlement without the consent of each indemnifying party~~judgment. (di) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 5.5 is unavailable to an indemnified party hereunder in respect to of any ~~Losses~~losses, claims, damages, liabilities or expenses, then ~~the~~ each such indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such ~~Losses~~ losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the ~~indemnifying~~ indemnified party and ~~indemnified~~ the indemnifying party in connection with the ~~actions~~ statements or omissions which resulted in such ~~Losses~~losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of ~~such~~ the indemnified party 15 and the indemnifying ~~party and indemnified~~ party shall be determined by reference to, among other things, whether ~~any action in question, including any~~ the untrue ~~statement~~ or alleged untrue statement of a material fact or the omission or alleged omission to state a material ~~fact, has been made by, or~~ fact relates to information supplied ~~by,~~ by such ~~indemnifying party or indemnified~~ party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such ~~action~~statement or omission. (ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5.5(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 in the immediately preceding paragraph. The amount paid or payable by a an indemnified party as a result of the ~~Losses~~ losses, claims, damages, expenses, liabilities, or judgements referred to ~~above~~ in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth ~~in Section 12(c)~~above, any legal or other ~~fees and~~ expenses reasonably incurred by such indemnified party in connection with investigating or defending any ~~investigation~~ such action or ~~proceeding~~claim. Notwithstanding the provisions of this Section 5.5(d), no holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of such selling holder were offered to the public pursuant to such Registration Statement exceeds the amount of any damages which such selling holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No ~~Person~~ person found guilty by a court of competent jurisdiction 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 found guilty by a court of competent jurisdiction of such fraudulent misrepresentation~~. The parties agree that it would not be just and equitable if contribution pursuant to~~ . (e) Neither the Company nor the holders shall have any obligation under this Agreement (other than as set forth in this Section ~~12(d~~5.5) ~~were determined by pro rata allocation~~ to provide the other with indemnification or by contribution in respect of any ~~other method of allocation that does not take into account the consideration~~ losses, claims, damages, liabilities or expenses referred to in this Section ~~12(d). If indemnification is available under this Section 12~~5.5; provided, however, that the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section 12 5.5 shall ~~be in addition to any~~ not relieve an indemnifying party from liability which ~~any indemnifying party~~ it may have to ~~any~~ an indemnified party ~~and shall survive~~ other than with respect to the ~~termination of this Agreement. (f) The indemnification and contribution required by~~ matters referred to in this Section ~~12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred~~5.5.

Appears in 1 contract

Samples: Class a Warrant Agreement (Soy Environmental Products Inc)

Indemnification; Contribution. (a) Indemnification by the Company. The Company ~~shall~~ agrees to ------------------------------ indemnify and hold ~~harmless~~harmless each Designated Holder, ~~to the fullest extent permitted by law~~its partners, ~~each Holder in any offering or sale of Registrable Securities~~directors, ~~each Person~~officers, ~~if any, who participates as an underwriter in any offering and sale of Registrable Securities,~~ affiliates and each ~~Person, if any,~~ Person who controls ~~such Holder or such underwriter~~ (within the meaning of Section 15 of the Securities ~~Act or Section 20 of the Exchange Act~~ Act) such Designated Holder from and ~~their respective directors, trustees, officers, partners, agents, employees~~ against any and ~~affiliates against~~ all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) (each, a "Liability" and collectively, "~~Losses~~Liabilities"~~) incurred by such party pursuant to any actual or threatened action~~), ~~suit, proceeding or investigation~~ arising out of or based ~~upon: (i)~~ upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of~~ not misleading under the circumstances ~~then existing) not misleading~~such statements were made, except ~~in each case~~ insofar as such ~~statements or omissions arise~~ Liability arises out of or ~~are~~ is based upon ~~(A)~~ any ~~such~~ untrue statement or alleged untrue statement or omission or alleged omission ~~made~~ contained in such Registration Statement, preliminary prospectus or final prospectus in reliance on and in conformity with information ~~with respect to~~ concerning such Designated Holder furnished in writing to the Company by such Designated Holder ~~or its counsel~~ expressly for use therein, ~~(B)~~ including, without limitation, the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable information furnished to the Company ~~and relating~~ pursuant to ~~action required of or inaction by the Company in connection with any such registration~~Section 7(b). ~~Notwithstanding the foregoing provisions of this Section 12(a), the~~ The Company shall ~~not be liable~~ also provide customary indemnities to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer underwriters of the Registrable ~~Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto~~Securities, ~~each Holder of Registrable Securities to be covered thereby shall~~their officers, ~~severally~~ directors and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities employees and each ~~Person, if any,~~ Person who controls ~~the Company or~~ such ~~underwriter~~ underwriters (within the meaning of Section 15 of the Securities ~~Act or Section 20 of the Exchange~~ Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) ~~not misleading, but only~~ to the same extent ~~that any such untrue statement or omission is made in reliance on and in conformity with information~~ as provided above with respect to ~~such Holder furnished in writing to~~ the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess indemnification of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Designated Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partySecurities. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or 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. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Registration Rights Agreement (Bottomline Technologies Inc /De/)

Indemnification; Contribution. (a) Indemnification by Partnership (or Successor Company). The ~~Company shall indemnify and hold harmless~~Partnership (or the Successor Company) agrees to indemnify, to the fullest extent permitted by law, each ~~Holder in~~ Participating Stockholder (and any ~~offering or sale of~~ Affiliate thereof holding Registrable ~~Securities~~Shares), each ~~Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities, and each Person, if any,~~ person who controls such ~~Holder~~ a Participating Stockholder or such ~~underwriter~~ Affiliate (within the meaning of ~~Section 15 of~~ either the Securities Act or ~~Section 20 of~~ the Exchange ~~Act~~ Act), and their respective ~~directors, trustees, officers, partners, agents, employees~~ directors and ~~affiliates~~ officers against any and all losses, claims, damages, liabilities and expenses (including ~~reasonable~~ attorneys' fees~~, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~) ~~(collectively, "Losses") incurred~~ caused by ~~such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i)~~ any untrue or alleged untrue statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus (each as amended and/or supplemented, if the Partnership (or the Successor Company) shall have furnished any amendments or supplements thereto), or any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein (in the case of a ~~Prospectus or a preliminary Prospectus~~prospectus, in the light of the circumstances ~~then existing~~under which they were made) not misleading; provided that the Partnership (or the Successor Company) shall not be required to indemnify such Participating Stockholder or such Affiliate, ~~except in each case insofar as~~ such ~~statements~~ controlling persons or ~~omissions arise out of~~ their respective officers or ~~are based upon (A)~~ directors for any losses, claims, damages, liabilities or expenses resulting from any such untrue statement or ~~alleged untrue statement or~~ omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with any information with respect to such ~~Holder~~ Participating Stockholder or its Affiliates or the underwriters furnished ~~in writing~~ to the ~~Company~~ Partnership (or the Successor Company) by such ~~Holder~~ Participating Stockholder or its ~~counsel specifically~~ Affiliates expressly for use therein; ~~provided, however~~and provided further, that ~~no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b)~~ with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or omission or alleged untrue statement ~~of a material fact~~ or omission made in any preliminary prospectus, the indemnity agreement contained in this paragraph shall not inure to the benefit of such Participating Stockholder or ~~alleged~~ such Affiliate, if the liability or expense results from the fact that a copy of the prospectus was not sent or given to such person at or prior to the written confirmation of sale of such Registrable Shares to such person as required by the Securities Act, and if the untrue statement or omission ~~to state a material fact,~~ has been ~~made by, or relates~~ corrected in the prospectus unless such failure to ~~information supplied by, such indemnifying party or indemnified party, and~~ deliver the ~~parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as~~ prospectus was a result of noncompliance by the ~~Losses referred to above shall be deemed to include, subject to~~ Partnership (or the ~~limitations set forth in~~ Successor Company) with its obligations under Section ~~12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in~~ 11.3(a) hereof. In connection with ~~any investigation~~ an underwritten offering, the Partnership (or ~~proceeding. No Person guilty~~ the Successor Company) will indemnify each underwriter thereof, the officers and directors of ~~fraudulent misrepresentation~~ such underwriter, and each person who controls such underwriter (within the meaning of ~~Section 11(f~~either the Securities Act or Exchange Act) to the same extent as provided above with respect to the indemnification of the ~~Securities Act~~Participating Stockholder; provided that such underwriter agrees to indemnify the Partnership (or the Successor Company) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the ~~full~~ same extent as provided ~~in Section 12(a) or 12(b), as the case may be, without regard~~ below with respect to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification ~~and contribution required by this Section 12 shall be made by periodic payments~~ of the ~~amount thereof during~~ Partnership (or the ~~course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred~~Successor Company) by the Participating Stockholder.

Appears in 1 contract

Samples: Limited Partnership Agreement (Airtouch Communications)

Indemnification; Contribution. (a) The ~~Company shall indemnify and hold harmless~~Trust hereby indemnifies, to the fullest extent permitted by law, ~~each Holder in any offering or sale of Registrable Securities~~the Beneficial Owner, ~~each Person, if any, who participates as an underwriter in any offering~~ its general partners and ~~sale of Registrable Securities,~~ its officers and each Person, if any, who controls ~~such Holder or such underwriter~~ the Beneficial Owner within the meaning of Section 15 of the Securities Act or and Section 20 of the Exchange ~~Act and their respective directors~~Act, ~~trustees, officers, partners, agents, employees and affiliates~~ against all losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses (~~including reasonable attorneys' fees~~under the Securities Act, ~~disbursements~~ common law and ~~expenses~~otherwise), ~~as incurred, and any amounts paid in any settlement effected with the Company's consent~~joint or several, which ~~consent shall not be unreasonably withheld or delayed) (collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising~~ arise out of or are based ~~upon:~~ upon (i) any untrue statement or alleged untrue statement of a material fact contained in the registration statement contemplated hereby or in any prospectus, preliminary prospectus, any amendment or supplement thereto or any document incorporated by reference relating thereto or in any filing made in connection with the registration or qualification of the offering under "blue sky" or other securities laws of jurisdictions in which the Registrable Securities are offered, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and the Trust shall reimburse the Beneficial Owner for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or proceeding, (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, if used prior to the effective date of such registration statement (unless such statement is corrected in the final prospectus and the Trust has previously furnished copies thereof to the Beneficial Owner seeking such indemnification), or contained in the final prospectus (as amended or supplemented if the Trust shall have filed with the Commission any amendment thereof or supplement thereto) if used within the period during which the Trust is required to keep the registration statement to which such prospectus relates current, or the omission or alleged omission to state therein a material fact necessary in order to make the statements therein in light of the circumstances under which they were made, not misleading; provided, however, that such indemnification shall not extend to any such losses, claims, damages, liabilities (or proceedings in respect thereof) or expenses that are caused by any untrue statement or alleged untrue statement contained in, or by any omission or alleged omission from, information furnished in writing to the Trust by the Beneficial Owner in such capacity specifically and expressly for use in any such registration statement or prospectus. (b) In connection with the registration statement contemplated herein, the Beneficial Owner shall furnish to the Trust in writing such information regarding such Person as shall be reasonably requested by the Trust for use in such registration statement or prospectus and the Beneficial Owner hereby indemnifies, to the fullest extent permitted by law, the Trust, its officers and trustees and each Person, if any, who controls the Trust within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act, against any losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses resulting from any untrue statement or alleged untrue statement of a material fact or any omission or alleged omission of a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ or necessary to make the statements ~~therein (~~in the ~~case of a Prospectus~~ registration statement or ~~a preliminary Prospectus~~prospectus, ~~in the light of the circumstances then existing)~~ or any amendment thereof or supplement thereto, not misleading; provided, ~~except~~ however, that the Beneficial Owner shall be liable hereunder if and only to the extent that any such loss, claim, damage, liability (or proceeding in ~~each case insofar as such statements~~ respect thereof) or ~~omissions arise~~ expense arises out of or ~~are~~ is based upon ~~(A) any such~~ an untrue ~~statement~~ statement, or alleged untrue statement or omission or alleged ~~omission~~ omission, made in reliance on upon and in conformity with information ~~with respect~~ pertaining to ~~such Holder~~ the Beneficial Owner which is requested by the Trust and furnished in writing to the ~~Company~~ Trust by ~~such Holder or its counsel~~ the Beneficial Owner specifically and expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in ~~connection with~~ any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue registration statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statementprospectus. (c) Any Person ~~entitled to~~ seeking indemnification ~~hereunder agrees to give prompt written notice to~~ under the ~~indemnifying party~~ provisions of this Section 7 shall, promptly after ~~the~~ receipt by such ~~indemnified party~~ Person of ~~any written~~ notice of the commencement of any action, suit, ~~proceeding~~ claim or ~~investigation or threat thereof made~~ proceeding, notify each party against whom indemnification is to be sought in writing ~~for which such indemnified~~ of the commencement thereof; provided, however, that the failure so to notify an indemnifying party ~~may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification~~ shall not ~~affect the obligations of~~ relieve the indemnifying party ~~pursuant to~~ from any liability which it or he may have under this Section 12 7 (except to the extent that it has been prejudiced in any material respect by such failure) or from any liability which the indemnifying party ~~shall have been actually and materially prejudiced as a result of such failure~~may otherwise have. In case any such ~~action shall be~~ action, suit, claim or proceeding is brought against any indemnified ~~party~~ party, and it ~~shall notify the~~ notifies an indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent ~~that~~ it ~~shall wish, jointly with any other indemnifying~~ or he may elect by written notice delivered to the indemnified party ~~similarly notified~~promptly after receiving the aforesaid notice from such indemnified party, to assume the defense ~~thereof,~~ thereof with counsel reasonably satisfactory to such indemnified party. Notwithstanding the foregoing, the indemnified party shall have the right to employ its own counsel in any such case, but the fees and ~~after notice from~~ expenses of such counsel shall be at the expense of such indemnified party unless (i) the employment of such counsel shall have been authorized in writing by the indemnifying party in connection with the defense of such suit, action, claim or proceeding, (ii) the indemnifying party shall not have employed counsel (reasonably satisfactory to the indemnified party) to take charge of the defense of such action, suit, claim or proceeding within a reasonable time after notice of commencement of the action, suit, claim or proceeding, or (iii) such indemnified party shall have reasonably concluded, based on the advice of counsel, that there may be defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and the indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party. If any of the events specified in clauses (ii) or (iii) of the preceding sentence shall have occurred or shall otherwise be applicable, then the fees and expenses of one counsel or firm of counsel selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party. If, in any case, the indemnified party ~~of its election so to assume the defense thereof~~employs separate counsel, the indemnifying party shall not ~~be liable~~ have the right to direct the defense of such ~~indemnified party for any legal expenses~~ action, suit, claim or proceeding on behalf of ~~other counsel or any other expenses, in each case subsequently incurred by such~~ the indemnified party. Anything in this paragraph to the contrary notwithstanding, in connection with the defense thereof other than reasonable costs of investigation, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the an indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment settlement of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, claim or proceeding ~~or investigation, shall, except with~~ effected without its prior written consent (which consent in the ~~consent~~ case of ~~each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as~~ an ~~unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such~~ action, suit, claim or proceeding exclusively seeking monetary relief shall not be unreasonably withheld or ~~investigation to the extent such liability is covered by the indemnity obligations set forth~~ delayed). Such indemnification shall remain in ~~this Section 12. No indemnified party shall consent to entry~~ full force and effect irrespective of any ~~judgment~~ investigation made by or ~~entry into any settlement without the consent~~ on behalf of ~~each indemnifying~~ an indemnified party. (d) If the indemnification from the indemnifying party as provided ~~for~~ in this Section 12 7 is unavailable or is otherwise insufficient to hold harmless an indemnified party ~~hereunder~~ in respect of any losses, claims, damages, liabilities or expenses referred to ~~any Losses~~therein, then the indemnifying ~~party, in lieu of indemnifying such indemnified party,~~ party shall contribute to the amount paid or payable by such indemnified party as a result of such ~~Losses~~ losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified ~~party~~ parties in connection with the actions which resulted in such ~~Losses~~losses, ~~as well as any other relevant equitable considerations; provided~~claims, ~~however~~damages, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statementliabilities or expenses. The relative fault of such indemnifying ~~party and indemnified~~ party shall be determined by reference to, among other things, whether any action in question, including any untrue ~~statement~~ (or alleged ~~untrue~~ untrue) statement of a material fact or omission (or alleged ~~omission~~ omission) to state a material fact, has been ~~made by~~made, or relates to information supplied ~~by,~~ by such indemnifying party or such indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the ~~Losses~~ losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section ~~12(c)~~7(d) hereof, any legal or other fees ~~and~~ or expenses reasonably incurred by such ~~indemnified~~ party in connection with any such investigation or proceeding. The parties hereto acknowledge 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 other than as described above. Notwithstanding the provisions of this Section 7(d), the Beneficial Owner shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Beneficial Owner were offered to the public exceeds the amount of any damages which the Beneficial Owner has otherwise been required to pay or become liable to pay by reason of such untrue statement or omission. No ~~Person~~ person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~Person~~ person who was not guilty of such fraudulent misrepresentation. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If If, however, indemnification is available under this Section 127, the indemnifying parties shall indemnify each indemnified party to the ~~full~~ fullest extent provided in ~~Section 12(a~~Sections 7(a) ~~or 12(b), as the case may be,~~ through 7(d) hereof without regard to the relative fault of ~~such~~ said indemnifying ~~parties~~ party or indemnified party or any other equitable ~~consideration provided for in this Section 12(d)~~consideration. (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Registration Rights Agreement (Pennsylvania Real Estate Investment Trust)

Indemnification; Contribution. ~~(a)~~ The Company shall indemnify and hold harmless, to the fullest extent permitted by law, each ~~Holder in any offering or sale~~ holder (a "Participating Holder") of Registrable ~~Securities~~Securities registered pursuant to Section 2(a) or Section 2(b) hereof, ~~each Person~~its officers and directors, if any, ~~who participates as an underwriter in any offering and sale of Registrable Securities,~~ and each ~~Person~~person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and affiliates against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i) any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and ~~their respective directors, trustees, officers, partners, agents, employees and affiliates,~~ against all ~~Losses incurred by such party pursuant to any actual action~~losses, ~~suit~~claims, ~~proceeding~~ damages, liabilities (or proceedings in respect thereof) and expenses (including the reasonable costs of investigation ~~arising~~ and reasonable attorneys' fees, disbursements and related charges) (under the Securities Act, the Canadian Securities Acts, common law and otherwise) (collectively, "Claims"), joint or several, which arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (~~in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing~~A) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact contained in any registration statement, prospectus, preliminary prospectus, any amendment or supplement thereto or any document incorporated by reference or in any filing made in connection with the registration or qualification of the offering under "blue sky" or other securities laws of jurisdictions in which the Participating Holder's Registrable Securities are offered (collectively, "Security Filings"), or any omission or alleged omission to state therein a material ~~fact~~fact required to be stated therein or necessary to make the statements therein not misleading, and (B) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, if used prior to the effective date of such registration statement (unless such statement is corrected in the final prospectus and the Company has ~~been made by~~previously furnished copies thereof to any Participating Holder seeking such indemnification and to the underwriters of the registration in question), or contained in the final prospectus (as amended or supplemented if the Company shall have filed with the Commission any amendment thereof or supplement thereto) if used within the period during which the Company is required to keep the registration statement to which such prospectus relates current, or the omission or alleged omission to ~~information supplied by~~state therein a material fact necessary in order to make the statements therein, ~~such indemnifying party or indemnified party~~in light of the circumstances under which they were made, not misleading; and the Company shall, and ~~the parties' relative intent~~it hereby agrees to, ~~knowledge, access to information and opportunity to correct or prevent~~ reimburse such ~~action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c),~~ holders for any legal or other ~~fees and~~ expenses reasonably incurred by ~~such indemnified party~~ them in connection with investigating or defending any ~~investigation~~ such claim or proceeding~~. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)~~ ; provided, however, that such indemnification shall ~~be entitled~~ not extend to ~~contribution from~~ any ~~Person who was not guilty of such fraudulent misrepresentation. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined~~ Claims which are caused by ~~pro rata allocation~~ any untrue statement or alleged untrue statement contained in, or by any ~~other method of allocation that does not take into account the consideration referred to~~ omission or alleged omission from, information furnished in ~~this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party~~ writing to the ~~full extent provided~~ Company by any Qualified Holder expressly for use in ~~Section 12(a) or 12(b), as the case may be, without regard to the relative fault of~~ any such ~~indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d)~~Security Filing. (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Excelcom Inc)

Indemnification; Contribution. (a) ~~The Company shall indemnify~~ In connection with any registration of Registrable Securities or Underwritten Offering pursuant to ‎Section 2.01, ‎Section 2.02 or ‎Section 2.03, Boron will indemnify, defend and hold ~~harmless~~harmless each Shareholder, ~~to the fullest extent permitted by law~~its Affiliates, ~~each Holder in any offering or sale of Registrable Securities~~directors, ~~each Person~~officers, ~~if any, who participates as an underwriter in any offering~~ shareholders and ~~sale of Registrable Securities,~~ employees and each ~~Person, if any,~~ Person who controls such ~~Holder or such underwriter~~ Shareholders within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and affiliates against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, ~~"Losses"~~the “Indemnified Persons”) ~~incurred~~ from and against any and all Losses caused by ~~such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i)~~ any untrue or alleged untrue statement of a material fact contained inor incorporated by reference in any part of any Registration Statement or any Prospectus, including any amendment or supplement thereto, used in connection with the Registrable Securities, or any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein (in the case of a ~~Prospectus or a preliminary~~ Prospectus, in the light of the circumstances ~~then existing~~under which they were made) not misleading; provided, ~~except in each case insofar as~~ however, that Boron will not be required to indemnify any Indemnified Person for any such ~~statements or omissions arise~~ Loss arising out of or ~~are based upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information~~ with respect to ~~such Holder furnished in writing~~ sales pursuant to ~~the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective~~ the Registration Statement ~~of which such~~ or Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon ~~an untrue statement~~ information in the Registration Statement or ~~alleged untrue statement~~ Prospectus that was represented by Silicon or ~~omission or alleged omission made~~ Silicon Holdings as true and correct in ~~any Prospectus if either (i) (A)~~ the Merger Agreement, and with respect to which Boron would not have been reasonably expected to discover the failure of such ~~Holder or underwriter failed~~ information to ~~send or deliver a copy of the Prospectus with or~~ be true and correct prior to the ~~delivery~~ date of ~~written confirmation of the sale of Registrable Securities by~~ such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified partysales. (b) In connection with any Registration Statement ~~filed pursuant hereto~~or Prospectus, ~~each Holder of~~ the Shareholders who sell Registrable Securities pursuant to ~~be covered thereby shall,~~ such Registration Statement or Prospectus will severally ~~and~~ but not jointly ~~with any other Holders~~indemnify, ~~indemnify~~ defend and hold ~~harmless~~harmless Boron, ~~to the fullest extent permitted by law~~its directors, ~~the Company~~its officers, ~~each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities~~ its employees and each Person, if any, who controls ~~the Company or such underwriter~~ Boron (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as the foregoing indemnity from Boron to the Shareholders, ~~and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant~~ but only with respect to ~~any actual action, suit, proceeding or investigation~~ information arising out of or based upon information furnished in writing by such Shareholder or on such Shareholder’s behalf (in each case, in its capacity as a Shareholder), in either case expressly for use in any ~~untrue or alleged untrue statement of a material fact contained in,~~ Registration Statement or any ~~omission or alleged omission of a material fact required to be stated in~~Prospectus, ~~the Registration Statement, Prospectus or preliminary Prospectus or~~ including any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statementthereto. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any claim, action or proceeding (including any governmental investigation) is instituted involving any Person in respect of which indemnity may be sought pursuant to Section 2.11(a) or ‎Section 2.11(b), such ~~action shall be brought against any indemnified party and it shall~~ Person (the “Indemnified Party”) will promptly notify the ~~indemnifying party of~~ Person against whom such indemnity may be sought (the ~~commencement thereof,~~ “Indemnifying Party”) in writing and the ~~indemnifying party~~ Indemnifying Party shall be entitled to participate therein and, to the extent ~~that~~ it shall wish~~, jointly with any other indemnifying party similarly notified~~, to assume the defense ~~thereof,~~ thereof with counsel reasonably satisfactory to the Indemnified Party and will pay the fees and disbursements of such ~~indemnified party, and after notice from the indemnifying party~~ counsel related to such ~~indemnified party~~ proceeding; provided, however, that the failure or delay to give such notice shall not relieve the Indemnifying Party of its ~~election so~~ obligations pursuant to ~~assume~~ this Agreement except to the ~~defense thereof, the indemnifying party~~ extent that it shall ~~not~~ be ~~liable to~~ determined by a court of competent jurisdiction that such ~~indemnified party for any legal expenses of other counsel or any other expenses, in each case subsequently incurred~~ Indemnifying Party has been prejudiced by such ~~indemnified party, in connection with the defense thereof other than reasonable costs of investigation, unless in the reasonable judgment of~~ failure or delay. In any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, action or proceeding, the Indemnified Party shall have the right, but not the obligation, to participate in ~~which event the indemnifying party shall not be liable for~~ any such defense and to retain its own counsel, but the fees and expenses of such counsel will be at the expense of such Indemnified Party unless (i) ~~more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by~~ the ~~Holders of a Majority of~~ Indemnifying Party and the ~~Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory~~ Indemnified Party have mutually agreed to the ~~Company)~~retention of such counsel, (ii) ~~more than one counsel for~~ the ~~underwriters in an Underwritten Offering~~ Indemnifying Party fails to assume the defense of the claim, action or proceeding within fifteen (15) Business Days following receipt of notice from the Indemnified Party or (iii) ~~more than one~~ the Indemnified Party and the Indemnifying Party are both actual or potential defendants in, or targets of, any such action and the Indemnified Party has been advised by counsel ~~for~~ that representation of both parties by the ~~Company~~same counsel would be inappropriate due to actual or potential conflicting interests between them. It is understood that the Indemnifying Party will not, ~~in each case~~ in connection with any ~~one~~ claim, action or ~~separate but similar~~ proceeding or related ~~actions. An indemnifying party who is not entitled to~~claims, actions or ~~elects not to~~proceedings in the same jurisdiction, ~~assume~~ be liable for the ~~defense of a claim shall not be obligated to pay the~~ reasonable fees and expenses of more than one ~~counsel~~ (1) separate firm of attorneys (in addition to any local counsel) at any time for all ~~parties indemnified by~~ such ~~indemnifying party with respect to~~ Indemnified Parties and that all such ~~claim, unless in the~~ reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses will be reimbursed as they are incurred. In the case of the retention of any such ~~additional counsel~~separate firm for the Indemnified Parties, ~~provided that~~ such firm will be designated in writing by the ~~indemnifying party shall~~ Indemnified Parties. The Indemnifying Party will not be liable for any settlement of any claim, action or proceeding effected without its written consent (which consent shall not be unreasonably withheld, conditioned or delayed), but if such claim, action or proceeding is settled with such consent or if there has been a final judgment for the ~~fees~~ plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and ~~expenses~~ against any Loss by reason of such settlement or judgment. No Indemnifying Party will, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any pending or threatened proceeding in respect of which any Indemnified Party is seeking indemnity hereunder, unless such settlement includes (i) ~~more than one counsel for~~ an unconditional release of such Indemnified Party from all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company)liability in connection with such proceeding, (ii) ~~more than one counsel for~~ no finding or admission of any violation of Law or any violation of the ~~underwriters in an Underwritten Offering~~ rights of any Person by the Indemnified Party or any of its Affiliates can be made as the result of such action and (iii) ~~more than one counsel for~~ the ~~Company,~~ sole relief (if any) provided is monetary damages that are reimbursed in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving full by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyIndemnifying Party. (d) If the indemnification ~~from the indemnifying party~~ provided for in this ~~Section 12~~ ‎Section 2.11 from the Indemnifying Party is unavailable to an ~~indemnified party~~ Indemnified Party hereunder or is insufficient in respect of any Losses referred to ~~any Losses~~in this ‎Section 2.11, then the ~~indemnifying party~~Indemnifying Party, in lieu of indemnifying such ~~indemnified party~~Indemnified Party, ~~shall~~ will contribute to the amount paid or payable by such ~~indemnified party~~ Indemnified Party as a result of such Losses (i) in such proportion as is appropriate to reflect the relative fault of the ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party in connection with the actions ~~which~~ that resulted in such Losses, as well as any other relevant equitable considerations~~; provided~~, ~~however~~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 fault referred to in clause (i) but also the relative benefit of Boron, on the one hand, and such Shareholder, on the other, in connection with the statements or omissions that ~~no Holder shall be required to contribute~~ resulted in such Losses, as well as any ~~amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement~~other relevant equitable considerations. The relative fault of such ~~indemnifying party~~ Indemnifying Party and ~~indemnified party shall~~ Indemnified Party will be determined by reference to, among other things, whether any action in question, including any untrue ~~statement~~ or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been ~~made~~ taken by, or relates to information supplied by, such ~~indemnifying party~~ Indemnifying Party or ~~indemnified party~~Indemnified Party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of the Losses referred to above ~~shall~~ will be deemed to include, subject to the limitations set forth in ~~Section 12(c~~‎Section 2.11(c), any reasonable legal or other out of pocket fees ~~and~~ or expenses reasonably incurred by such ~~indemnified~~ party in connection with any investigation or proceeding~~. No Person guilty of fraudulent misrepresentation~~ . (~~within the meaning of Section 11(f~~e) ~~of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.~~ The parties agree that it would not be just and equitable if contribution pursuant to ~~this Section 12(d~~‎Section 2.11(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the ~~consideration~~ equitable considerations referred to in ~~this Section 12(d~~‎Section 2.11(d). If No Person guilty of “fraudulent misrepresentation” (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In no event shall any Shareholder be obligated to provide indemnification ~~is available under this Section 12,~~ or contribution in excess of the ~~indemnifying parties shall indemnify each indemnified party~~ net aggregate proceeds received from the sale of Registrable Securities pursuant to the ~~full extent provided in Section 12(a)~~ applicable Registration Statement or ~~12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d)~~Prospectus. (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Merger Agreement (Banner Corp)

Indemnification; Contribution. (a) The Company ~~shall~~ agrees to indemnify and hold ~~harmless~~harmless SRCA and its officers, ~~to the fullest extent permitted by law~~directors, ~~each Holder in any offering or sale of Registrable Securities~~shareholders, ~~each Person~~employees, ~~if any~~affiliates, ~~who participates as an underwriter in any offering and sale of Registrable Securities,~~ agents and each ~~Person, if any,~~ person who controls ~~such Holder or such underwriter~~ SRCA (and any of its affiliates) within the meaning of Section 15 of the Securities Act of 1933, as amended or Section 20 of the Securities Exchange Act of 1934, as amended (each an “Indemnified Person”), to the fullest extent lawful, against any and ~~their respective directors~~all claims, ~~trustees, officers, partners, agents, employees and affiliates against all~~ losses~~, claims~~, damages, ~~liabilities~~ liabilities, and expenses (including ~~reasonable attorneys' fees,~~ all fees and disbursements of counsel and ~~expenses, as incurred, and any amounts paid~~ other expenses reasonably incurred in ~~any settlement effected~~ connection with the ~~Company's consent~~investigation of, preparation for and defense of any pending or threatened claim, action, proceeding, inquiry, investigation or litigation, to which ~~consent shall not be unreasonably withheld or delayed~~an Indemnified Person may become subject) (collectively, ~~"Losses"~~“Damages”) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i) any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions that arise out of or are ~~based upon~~ related to any actual or proposed Transaction or Financing or SRCA’s engagement under this Agreement. However, this indemnification shall not include any Damages that are found in a final judgment by a court of competent jurisdiction to have resulted from the bad faith, willful misconduct or gross negligence of SRCA. (Ab) ~~any such untrue statement~~ If the indemnity above is unavailable or ~~alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect~~ insufficient to ~~such Holder furnished in writing to~~ hold harmless an Indemnified Person, then the Company shall contribute to amounts paid or payable by an Indemnified Person for Damages in such ~~Holder or its counsel expressly for use therein, (B)~~ proportion as appropriately reflects the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation relative benefits received by the Company on the one hand and SRCA on the other. If applicable law does not permit allocation solely on the basis of ~~any~~ benefits, then such contribution shall be made in such proportion as appropriately reflects both the relative benefits and relative fault of the parties and other ~~federal or state securities laws or regulations applicable~~ relevant equitable considerations. However, in no event shall SRCA’s aggregate contributions for Damages exceed the amount of fees actually received by SRCA under this Agreement. The relative benefits to the Company and ~~relating~~ SRCA of a Transaction or Financing shall be deemed to ~~action required of~~ be in the same proportion that the total value paid or ~~inaction~~ received or contemplated to be paid or received by the Company or its security holders in connection with the Transaction or Financing bears to the fees paid to SRCA for the Transaction or Financing. (c) Promptly after receipt by SRCA of notice of any claim or the commencement of any action for which an Indemnified Person may be entitled to indemnity, SRCA shall promptly notify the Company of such ~~registration~~claim or the commencement of such against the Indemnified Person that would give rise to indemnification. ~~Notwithstanding~~ However, any delay or failure to notify the ~~foregoing provisions~~ Company will not relieve the Company of ~~this Section 12(a)~~its indemnity obligation except to the extent it is materially prejudiced by such delay or failure. The Company may participate in the defense of the claim and shall assume the defense of the claim and shall pay as incurred the fees and disbursements of counsel for the proceeding. In any proceeding where the Company declines to assume the defense or the Company’s counsel is deemed to have a conflict of interest, the Indemnified Person shall have the right to retain its own counsel which shall be reasonably satisfactory to SRCA. The Company shall pay the fees and expenses of such counsel as incurred. However, the Company shall not be ~~liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a)~~ responsible for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel (other than counsel of record) for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyIndemnified Persons. (d) ~~If the indemnification from the indemnifying party provided~~ The Company will not enter into any waiver, release or settlement for ~~in this Section 12 is unavailable to an indemnified party hereunder in respect to~~ any ~~Losses~~threatened or pending claim, ~~then the indemnifying party~~action, ~~in lieu of indemnifying such indemnified party, shall contribute to the amount paid~~ proceeding or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or ~~proceeding. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall~~ settle any related litigation for which indemnification may be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available sought under this ~~Section 12, the indemnifying parties shall indemnify each indemnified~~ Agreement (whether or not Indemnified Persons are a formal party to the ~~full extent provided in Section 12(a) or 12(b~~litigation), as unless the ~~case may be~~waiver, ~~without regard to the relative fault~~ release or settlement includes an unconditional release of ~~such indemnifying parties or indemnified party or~~ each Indemnified Person from any ~~other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section 12 shall be in addition to any~~ and all liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments arising out of the ~~amount thereof during the course of any~~ threatened or pending claim, action, ~~suit~~proceeding, ~~proceeding~~ investigation or ~~investigation, as and when invoices are received or Losses are incurred~~litigation.

Appears in 1 contract

Samples: Investment Banking Engagement Agreement (Prospect Global Resources Inc.)

Indemnification; Contribution. (a) Indemnification by the Company. The Company ~~shall~~ agrees to indemnify ------------------------------ and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each Holder ~~in any offering or sale~~ of Registrable ~~Securities, each Person~~Securities and, if ~~any~~applicable, ~~who participates as an underwriter in any offering~~ its directors and ~~sale of Registrable Securities,~~ officers and each ~~Person, if any,~~ person who controls such Holder ~~or such underwriter~~ within the meaning of ~~Section~~ either Sections 15 of the Securities Act or Section 20 of the Exchange ~~Act~~ Act, covered by a registration statement filed pursuant to this Agreement from and ~~their respective directors, trustees, officers, partners, agents, employees~~ against any and ~~affiliates against~~ all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements~~ legal and ~~expenses, as incurred,~~ other costs of investigation and ~~any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~defense) (collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i) any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact contained in any such registration statement or prospectus relating to the Registrable Securities or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission to state therein a material ~~fact~~fact required to be stated therein or necessary to make the statements therein not misleading, ~~has been made by~~except insofar as such Losses arise out of, or ~~relates~~ are based upon, any untrue statement or omission or allegation thereof based upon information furnished in writing to ~~information supplied by~~the Company by such Holder or on such Holder's behalf expressly for use therein; provided, however, that with respect --------- ------- to any untrue statement or omission or alleged untrue statement or omission made in any preliminary or final prospectus, the indemnity agreement contained in this subsection shall not apply to the extent that any such ~~indemnifying party~~ Losses result from the fact that a current copy of the prospectus was not sent or ~~indemnified party~~given to the person asserting any such Losses at or prior to the written confirmation of the sale of the Registrable Securities concerned to such person if it is determined that it was the responsibility of such Holder to provide such person with a current copy of the prospectus and such current copy of the prospectus would have cured the defect giving rise to such Losses. The Company also agrees to indemnify any Underwriters of the Registrable Securities, their officers and directors, and ~~the parties' relative intent, knowledge, access to information and opportunity to correct or prevent~~ each person who controls such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. No Person guilty of fraudulent misrepresentation (Underwriters within the meaning of ~~Section 11(f)~~ either section 15 of the Securities ~~Act) shall be entitled to contribution from any Person who was not guilty~~ Act or section 20 of such fraudulent misrepresentation. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method the Exchange Act on substantially the same basis as the indemnification of ~~allocation that does not take into account the consideration referred to~~ Holders provided in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(dsubsection 7(a). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Registration Rights Agreement (Chase Acquisition Corp)

Indemnification; Contribution. (a) The Company ~~shall~~ will indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each Holder ~~in any offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities,~~ and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and affiliates Exchanging Dealer against ~~all~~ any losses, claims, ~~damages~~damages or liabilities, joint or several, to which such Holder or Exchanging Dealer may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities ~~and expenses~~ (~~including reasonable attorneys' fees, disbursements and expenses, as incurred, and any amounts paid~~ or actions in ~~any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~respect thereof) ~~(collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising~~ arise out of or are based ~~upon: (i) any~~ upon an untrue statement or alleged untrue statement of a material fact contained inin any preliminary Prospectus, any preliminary Prospectus supplement, the Registration Statement, the Prospectus as amended or supplemented and any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, ~~except in~~ and will reimburse each ~~case insofar as such statements~~ Holder and Exchanging Dealer for any legal or omissions arise out of or are based upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company other expenses reasonably incurred by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company Exchanging Dealer in connection with investigating or defending any such ~~registration. Notwithstanding the foregoing provisions of this Section 12(a)~~action or claim; provided, however, that the Company shall not be liable to in any such ~~Holder~~ case to the extent that any such loss, claim, damage or ~~underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise~~ liability arises out of or ~~are~~ is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary Prospectus, any preliminary Prospectus supplement, the Registration Statement, the Prospectus as amended or supplemented and any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by any Holder or Exchanging Dealer expressly for inclusion in the Prospectus; provided further, that if ~~either~~ any preliminary Prospectus, any preliminary Prospectus supplement, the Prospectus as amended or supplemented and any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities, or any amendment or supplement thereto, contained any alleged untrue statement or allegedly omitted to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading and such statement or omission shall have been corrected in a revised preliminary Prospectus, any preliminary Prospectus supplement, the Prospectus as amended or supplemented and any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities, or any amendment or supplement thereto, the Company shall not be liable to any Holder or Exchanging Dealer under this subsection (a) with respect to such alleged untrue statement or alleged omission to the extent that any such loss, claim, damage or liability of such Holder or Exchanging Dealer results from the fact that such Holder or Exchanging Dealer sold Offered Debt Securities or Exchange Debt Securities to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of a revised preliminary Prospectus (excluding documents incorporated by reference), preliminary Prospectus supplement (excluding documents incorporated by reference), the Prospectus (excluding documents incorporated by reference), the Prospectus as amended or supplemented (excluding documents incorporated by reference), any other amended prospectus relating to the Offered Debt Securities or the Exchange Debt Securities (excluding documents incorporated by reference) or any amendment or supplement thereto relating to the Offered Debt Securities or the Exchange Debt Securities (excluding documents incorporated by reference), as the case may be, containing a correction of such alleged misstatement or omission, if the Company has made available copies thereof to such Holder or Exchanging Dealer prior to the confirmation of such sale; and provided, further, that the Company shall not be liable to any Holder or Exchanging Dealer under this subsection (a) to the extent that any such loss, claim, damage or liability of such Holder or Exchanging Dealer results from the use by such Holder or Exchanging Dealer of the Prospectus as amended or supplemented (excluding documents incorporated by reference) or the Prospectus as amended or supplemented as it may be further amended or supplemented (excluding documents incorporated by reference), as the case may be (i) otherwise than in connection with an offer or sale of the Offered Debt Securities or the Exchange Debt Securities, or (Aii) at any time nine months or more after the time of issue of the Prospectus as amended or supplemented unless the Company has prior to such use amended or supplemented the Prospectus as amended or supplemented to comply with Section 10(a)(3) of the Act if required pursuant to Section 5(c) hereof and such Holder or ~~underwriter failed~~ Exchanging Dealer uses the Prospectus as amended or supplemented as so further amended or supplemented. Each Holder and Exchanging Dealer acknowledges that the indemnity agreement in this subsection (a) does not extend to ~~send~~ any liability which such Holder or ~~deliver~~ Exchanging Dealer might have under Section 5(b) of the Act by reason of the fact that such Holder or Exchanging Dealer sold Offered Debt Securities or Exchange Debt Securities to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus ~~with~~ (excluding documents incorporated by reference), the Prospectus as amended or ~~prior~~ supplemented (excluding documents incorporated by reference), any other prospectus relating to the ~~delivery of written confirmation of~~ Offered Debt Securities or the ~~sale of Registrable~~ Exchange Debt Securities (excluding documents incorporated by reference) or any amendment or supplement relating thereto (excluding documents incorporated by reference), as the case may be, if the Company has made available copies thereof to such Holder or ~~underwriter to the Person asserting the claim from which such Losses arise and~~ Exchanging Dealer. For purposes of this subsection (Ba) the Prospectus ~~would~~ (excluding documents incorporated by reference), the Prospectus as amended or supplemented (excluding documents incorporated by reference), any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities (excluding documents incorporated by reference) or any amendment or supplement relating thereto (excluding documents incorporated by reference), shall not be deemed to have ~~corrected~~ been made available to a Holder or Exchanging Dealer until such Holder or Exchanging Dealer has received the same. (b) Each Holder and Exchanging Dealer will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained any preliminary Prospectus, any preliminary Prospectus supplement, the Registration Statement, the Prospectus as amended or ~~such~~ supplemented and any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged ~~omission~~omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, ~~or (ii) (x)~~ in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission ~~is corrected~~ was made in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such any preliminary Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated inpreliminary Prospectus supplement, the Registration Statement, the Prospectus as amended or ~~preliminary Prospectus~~ supplemented and any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities, or any such amendment or ~~supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus~~supplement, in ~~the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in~~ reliance on upon and in conformity with written information ~~with respect to such Holder~~ furnished ~~in writing~~ to the Company by such Holder or ~~its counsel specifically~~ Exchanging Dealer expressly for ~~use~~ inclusion therein; ~~provided, however, that no Holder shall be required to indemnify~~ and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any ~~other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by~~ such ~~Holder from sales of the Registrable Securities of such Holder under such Registration Statement~~action or claim. (c) ~~Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party~~ Promptly after ~~the~~ receipt by ~~such~~ an indemnified party under subsection (a) or (b) above of ~~any written~~ notice of the commencement of any action, ~~suit, proceeding or investigation or threat thereof made in writing for which~~ such indemnified party ~~may~~ shall, if a claim ~~indemnification or contribution pursuant~~ in respect thereof is to ~~this Agreement, provided that failure to give such notification shall not affect the obligations of~~ be made against the indemnifying party ~~pursuant to this Section 12 except to~~ under such subsection, notify the ~~extent~~ indemnifying party in writing of the commencement thereof, and in the event that such indemnified party shall not so notify the indemnifying party within 30 days following receipt of any such notice by such indemnified party, the indemnifying party shall have ~~been actually~~ no further liability under such subsection to such indemnified party unless such indemnifying party shall have received other notice addressed and ~~materially prejudiced as a result~~ delivered in the manner provided in Section 8(c) hereof of the commencement of such ~~failure~~action; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement ~~thereof~~thereof as provided above, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel ~~reasonably~~ satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, ~~and~~ be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 6 is unavailable to an indemnified party ~~hereunder~~ under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to ~~any Losses~~therein, then ~~the~~ each indemnifying ~~party~~party shall, in lieu of indemnifying such indemnified party, ~~shall~~ contribute to the amount paid or payable by such indemnified party as a result of such ~~Losses~~ losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders and Exchanging Dealers on the other from the offering of the Offered Debt Securities or Exchange Debt Securities to which such loss, claim, damage or liability (or action in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the ~~indemnifying party~~ Company on the one hand and ~~indemnified party~~ the Holders and Exchanging Dealers on the other in connection with the ~~actions~~ statements or omissions which resulted in such ~~Losses~~losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations~~; provided, however, that no Holder~~ . The benefits received by the Company shall be ~~required~~ deemed to ~~contribute any amount in excess~~ be equal to the sum of ~~the amount of~~ (x) the total net proceeds from the Initial Placement (before deducting expenses) as set forth on the cover page of the Final Offering Memorandum and (y) the total amount of additional interest which the Company was not required to pay as a result of registering the securities covered by the Registration Statement which resulted in such losses, claims, damages or liabilities. Benefits received by ~~such Holder from sales~~ the Initial Purchasers shall be deemed to be equal to the total purchase discounts and commissions as set forth on the cover page of the ~~Registrable~~ Final Offering Memorandum, and benefits received by any other Holders or Exchanging Dealers shall be deemed to be equal to the value of receiving Offered Debt Securities ~~of the Holder~~ or Exchange Debt Securities, as applicable, registered under the ~~applicable Registration Statement~~Act. The relative fault ~~of such indemnifying party and indemnified party~~ shall be determined by reference to, among other things, whether ~~any action in question, including any~~ the untrue ~~statement~~ or alleged untrue statement of a material fact or the omission or alleged omission to state a material ~~fact, has been made by, or~~ fact relates to information supplied ~~by,~~ by the Company on the one hand or such ~~indemnifying party~~ Holders or ~~indemnified party,~~ Exchanging Dealers on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such ~~action~~statement or omission. The Company and the Holders and Exchanging Dealers agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Holders and Exchanging Dealers 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 subsection (d). The amount paid or payable by a an indemnified party as a result of the ~~Losses~~ losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to ~~include, subject to the limitations set forth in Section 12(c),~~ include any legal or other ~~fees and~~ expenses reasonably incurred by such indemnified party in connection with investigating or defending any ~~investigation~~ such action or ~~proceeding~~claim. Notwithstanding the provisions of this subsection (d), no Holder or Exchanging Dealer shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Offered Debt Securities or Exchange Debt Securities sold pursuant to the Registration Statement exceeds the amount of any damages which such Holder or Exchanging Dealer has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No ~~Person~~ person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ~~Securities~~ Act) shall be entitled to contribution from any ~~Person~~ person who was not guilty of such fraudulent misrepresentation. The ~~parties agree that it would not be just~~ obligations of the Holders and ~~equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to~~ Exchanging Dealers in this ~~Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party~~ subsection (d) to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d)contribute are several and not joint. (e) The ~~provisions~~ obligations of the Company under this Section 12 6 shall be in addition to any liability ~~which any indemnifying party~~ that the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of a Holder or Exchanging Dealer and to each person, if any, who controls a Holder or Exchanging Dealer within the meaning of the Act or the Exchange Act; and the obligations of the Holders and Exchanging Dealers under this Section 6 shall be in addition to any ~~indemnified party~~ liability that the respective Holders and Exchanging Dealers may otherwise have and shall ~~survive~~ extend, upon the ~~termination of this Agreement. (f) The indemnification~~ same terms and ~~contribution required by this Section 12 shall be made by periodic payments~~ conditions, to each officer and director of the ~~amount thereof during~~ Company and to each person, if any, who controls the ~~course~~ Company within the meaning of ~~any action, suit, proceeding~~ the Act or ~~investigation, as and when invoices are received or Losses are incurred~~the Exchange Act.

Appears in 1 contract

Samples: Registration Rights Agreement (Monsanto Co)

Indemnification; Contribution. (a) ~~The Company~~ Amicus shall indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each Holder in any offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within (including the ~~meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners~~employees, agents, ~~employees~~ representatives, officers and ~~affiliates~~ directors of each Purchaser and its Affiliates) (each a “Purchaser Indemnitee”) from and against any and all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) ~~(collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation~~ arising out of or based ~~upon: (i)~~ upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular prepared by Amicus in connection with the registration and/or offering of the Registrable Securities (as amended or supplemented if Amicus shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, except ~~in each case~~ insofar as ~~such statements~~ the same are caused by or ~~omissions arise out of or are based upon (A)~~ contained in any ~~such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with~~ information ~~with respect to~~ concerning such Holder furnished in writing to ~~the Company~~ Amicus by such Holder ~~or its counsel~~ specifically and expressly for ~~use therein, (B) the use of any Prospectus after~~ inclusion in such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified partydocument. (b) ~~In connection with any Registration Statement filed pursuant hereto, each~~ Each Holder ~~of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders,~~ shall indemnify and hold ~~harmless~~harmless Amicus, ~~to the fullest extent permitted by law~~and its respective directors, ~~the Company~~officers, ~~each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities~~ employees and each ~~Person, if any,~~ Person who controls ~~the Company or such underwriter~~ Amicus (within the meaning of ~~Section 15 of~~ the Securities Act ~~or Section 20 of~~ and the Exchange Act) from and against any and all losses, claims, damages, liabilities and ~~their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation~~ expenses (including reasonable costs of investigation) arising out of or based upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular prepared by Amicus in connection with the registration and/or offering of the Registrable Securities (as amended or supplemented if Amicus shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, ~~but only to the extent that any~~ if such ~~untrue~~ statement or omission is was made in reliance on upon and in conformity with any information ~~with respect to~~ concerning such Holder furnished in writing to ~~the Company~~ Amicus by such Holder ~~or its counsel~~ specifically and expressly for use ~~therein; provided, however, that no Holder shall be required to indemnify~~ in the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities preparation of such ~~Holder under such Registration Statement~~document. (c) ~~Any~~ Each Person entitled to indemnification hereunder (the “Indemnified Party”) agrees to give prompt written notice to the indemnifying party (the “Indemnifying Party”) after the receipt by ~~such indemnified party~~ the Indemnified Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which ~~such indemnified party may~~ the Indemnified Party intends to claim indemnification or contribution pursuant to ~~this Agreement~~the Transaction Documents; provided, ~~provided~~ however, that the failure to ~~give such notification~~ so notify the Indemnifying Party shall not ~~affect~~ relieve the ~~obligations~~ Indemnifying Party of any liability that it may have to the ~~indemnifying party pursuant to this Section 12 except~~ Indemnified Party hereunder unless, and only to the extent that, such failure results in the ~~indemnifying party shall have been actually and materially prejudiced as a result~~ Indemnifying Party’s forfeiture of ~~such failure~~substantive rights or defenses. ~~In case~~ If notice of commencement of any such action ~~shall be brought against any indemnified party and it shall notify~~ is given to the ~~indemnifying party of the commencement thereof~~Indemnifying Party as above provided, the ~~indemnifying party~~ Indemnifying Party shall be entitled to participate ~~therein~~ in and, to the extent ~~that~~ it ~~shall~~ may wish, jointly with any other ~~indemnifying party~~ Indemnifying Party similarly notified, to assume the defense ~~thereof~~of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such ~~indemnified party,~~ Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any such action and ~~after notice from the indemnifying party to such indemnified party of its election so to assume~~ participate in the defense thereof, but the ~~indemnifying party shall not be liable to such indemnified party for any legal~~ fees and expenses of ~~other~~ such 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, ) shall be paid by the Indemnified Party unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) ~~more than one~~ the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense of such action with counsel ~~for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be~~ reasonably satisfactory to the ~~Company), (ii) more than one counsel for the underwriters~~ Indemnified Party in ~~an Underwritten Offering~~ its reasonable judgment or (iii) the named parties to any such action (including any impleaded parties) have been advised by such counsel that either (x) representation of such Indemnified Party and the Indemnifying Party by the same counsel would be inappropriate under applicable standards of professional conduct or (y) there may be one or more ~~than one counsel for~~ legal defenses available to it which are different from or additional to those available to the ~~Company~~Indemnifying Party. In either of such cases, ~~in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is~~ the Indemnifying Party shall not ~~entitled to, or elects not to,~~ have the right to assume the defense of ~~a claim~~ such action on behalf of such Indemnified Party. No Indemnifying Party shall be liable for any settlement entered into without its written consent (other than in the case where the Indemnifying Party is unconditionally released from liability and its rights are not adversely effected), which consent shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyunreasonably withheld. (d) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 7.5 from the Indemnifying Party pursuant to applicable law is unavailable to an ~~indemnified party~~ Indemnified Party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to ~~any Losses~~therein, then the ~~indemnifying party~~Indemnifying Party, in lieu of indemnifying such ~~indemnified party~~Indemnified Party, shall contribute to the amount paid or payable by such ~~indemnified party~~ Indemnified Party as a result of such ~~Losses~~ losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party in connection with the actions which resulted in such ~~Losses~~losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative ~~fault~~ faults of such ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue ~~statement~~ or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such ~~indemnifying party~~ Indemnifying Party or ~~indemnified party~~Indemnified Party, and the parties' ’ relative intent, ~~knowledge~~Knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the ~~Losses~~ losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in ~~Section 12(c~~Sections 7.5(a), (b) and (c), any legal or other ~~fees and~~ fees, charges or expenses reasonably incurred by such ~~indemnified~~ party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.5(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 in the immediately preceding paragraph. No Person guilty of an intentional or 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 parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d)Person. (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Securities Purchase Agreement (Amicus Therapeutics Inc)

Indemnification; Contribution. (a) ~~The Company~~ ViroPharma shall indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each Holder in (including the officers and directors of SaSy) from and against any ~~offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering~~ and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and affiliates against all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) ~~(collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation~~ arising out of or based ~~upon: (i)~~ upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular (as amended or supplemented if ViroPharma shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, except ~~in each case~~ insofar as ~~such statements~~ the same are caused by or ~~omissions arise out of or are based upon (A)~~ contained in any ~~such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with~~ information ~~with respect to~~ concerning such Holder furnished in writing to ~~the Company~~ ViroPharma by such Holder ~~or its counsel~~ expressly for use ~~therein, (B) the use of any Prospectus after~~ in such ~~time as the obligation of the Company to keep effective the~~ Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified partyStatement. (b) ~~In connection with any Registration Statement filed pursuant hereto, each~~ Each Holder ~~of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders,~~ shall indemnify and hold ~~harmless~~harmless ViroPharma, ~~to the fullest extent permitted~~ any underwriter retained by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, ViroPharma and their respective directors, ~~trustees,~~ officers~~, partners, agents~~, employees and ~~affiliates~~each Person who controls ViroPharma or such underwriter (within the meaning of the Securities Act and the Exchange Act) from and against any and all losses, ~~against all Losses incurred by such party pursuant to any actual action~~claims, ~~suit~~damages, ~~proceeding or investigation~~ liabilities and expenses (including reasonable costs of investigation) arising out of or based upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular (as amended or supplemented if ViroPharma shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, ~~but only to the extent that any~~ if such ~~untrue~~ statement or omission is was made in reliance on upon and in conformity with any information ~~with respect to~~ concerning such Holder furnished in writing to ~~the Company~~ ViroPharma by such Holder ~~or its counsel~~ specifically for use ~~therein~~in the preparation of such Registration Statement or prospectus; provided, however, that no the total amount to be indemnified by such -------- ------- Holder pursuant to this Section 8.6(b) shall be ~~required~~ limited to ~~indemnify~~ the ~~Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total~~ net proceeds received by ~~such Holder from sales of~~ the ~~Registrable Securities of such Holder under such~~ Holders in the offering to which the Registration ~~Statement~~Statement or prospectus relates. (c) ~~Any~~ Each Person entitled to indemnification hereunder (the "Indemnified Party") agrees to give prompt written notice to the indemnifying party (the "Indemnifying Party") after the receipt by ~~such indemnified party~~ the Indemnified Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which ~~such indemnified party may~~ the Indemnified Party intends to claim indemnification or contribution pursuant to this Agreement; provided, ~~provided~~ however, that the failure so to ~~give such notification~~ notify the Indemnifying Party shall -------- ------- not ~~affect~~ relieve the ~~obligations~~ Indemnifying Party of any liability that it may have to the ~~indemnifying party pursuant to this Section 12 except~~ Indemnified Party hereunder unless, and only to the extent that, such failure results in the ~~indemnifying party shall have been actually and materially prejudiced as a result~~ Indemnifying Party's forfeiture of ~~such failure~~substantive rights or defenses. ~~In case~~ If notice of commencement of any such action ~~shall be brought against any indemnified party and it shall notify~~ is given to the ~~indemnifying party of the commencement thereof~~Indemnifying Party as above provided, the ~~indemnifying party~~ Indemnifying Party shall be entitled to participate ~~therein~~ in and, to the extent ~~that~~ it ~~shall~~ may wish, jointly with any other ~~indemnifying party~~ Indemnifying Party similarly notified, to assume the defense ~~thereof~~of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such ~~indemnified party,~~ Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any such action and ~~after notice from the indemnifying party to such indemnified party of its election so to assume~~ participate in the defense thereof, but the ~~indemnifying party shall not be liable to such indemnified party for any legal~~ fees and expenses of ~~other~~ such 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, ) shall be paid by the Indemnified Party unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) ~~more than one~~ the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense of such action with counsel ~~for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be~~ reasonably satisfactory to the ~~Company), (ii) more than one counsel for the underwriters~~ Indemnified Party in ~~an Underwritten Offering~~ its reasonable judgment or (iii) the named parties to any such action (including any impleaded parties) have been advised by such counsel that either (x) representation of such Indemnified Party and the Indemnifying Party by the same counsel would be inappropriate under applicable standards of professional conduct or (y) there may be one or more ~~than one counsel for~~ legal defenses available to it which are different from or additional to those available to the ~~Company~~Indemnifying Party. In either of such cases, ~~in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is~~ the Indemnifying Party shall not ~~entitled to, or elects not to,~~ have the right to assume the defense of ~~a claim~~ such action on behalf of such Indemnified Party. No Indemnifying Party shall be liable for any settlement entered into without its written consent (other than in the case where the Indemnified Party is unconditionally released from liability and its rights are not adversely effected), which consent shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyunreasonably withheld. (d) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 8.6 from the Indemnifying Party pursuant to applicable law is unavailable to an ~~indemnified party~~ Indemnified Party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to ~~any Losses~~therein, then the ~~indemnifying party~~Indemnifying Party, in lieu of indemnifying such ~~indemnified party~~Indemnified Party, shall contribute to the amount paid or payable by such ~~indemnified party~~ Indemnified Party as a result of such ~~Losses~~ losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party in connection with the actions which resulted in such ~~Losses~~losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative ~~fault~~ faults of such ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue ~~statement~~ or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such ~~indemnifying party~~ Indemnifying Party or ~~indemnified party~~Indemnified Party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the ~~Losses~~ losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in ~~Section 12(c~~Sections 8.6(a), (b) and (c), any legal or other ~~fees and~~ fees, charges or expenses reasonably incurred by such ~~indemnified~~ party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8.6(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 in the immediately preceding paragraph. 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 parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d)Person. (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Stock Purchase Agreement (Viropharma Inc)

Indemnification; Contribution. (a) Indemnification by the Company. The Company ~~shall~~ agrees to ------------------------------ indemnify and hold ~~harmless~~harmless each Designated Holder, ~~to the fullest extent permitted by law~~its partners, ~~each Holder in any offering or sale of Registrable Securities~~directors, ~~each Person~~officers, ~~if any, who participates as an underwriter in any offering and sale of Registrable Securities,~~ affiliates and each ~~Person, if any,~~ Person who controls ~~such Holder or such underwriter~~ (within the meaning of Section 15 of the Securities ~~Act or Section 20 of the Exchange Act~~ Act) such Designated Holder from and ~~their respective directors, trustees, officers, partners, agents, employees~~ against any and ~~affiliates against~~ all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) (each, a "Liability" and collectively, "~~Losses~~Liabilities"~~) incurred by such party pursuant to any actual or threatened action~~), ~~suit, proceeding or investigation~~ arising --------- ----------- out of or based ~~upon: (i)~~ upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus,~~ not misleading in the light of the circumstances ~~then existing) not misleading~~under which such statements were made, except ~~in each case~~ insofar as such ~~statements or omissions arise~~ Liability arises out of or ~~are~~ is based upon ~~(A)~~ any ~~such~~ untrue statement or alleged untrue statement or omission or alleged omission ~~made~~ contained in such Registration Statement, preliminary prospectus or final prospectus in reliance on and in conformity with information ~~with respect to~~ concerning such Designated Holder furnished in writing to the Company by such Designated Holder ~~or its counsel~~ expressly for use therein, ~~(B)~~ including, without limitation, the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable information furnished to the Company ~~and relating~~ pursuant to ~~action required of or inaction by the Company in connection with any such registration~~Section 7(b). ~~Notwithstanding the foregoing provisions of this Section 12(a), the~~ The Company shall ~~not be liable~~ also provide customary indemnities to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer underwriters of the Registrable ~~Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto~~Securities, ~~each Holder of Registrable Securities to be covered thereby shall~~their officers, ~~severally~~ directors and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities employees and each ~~Person, if any,~~ Person who controls ~~the Company or~~ such ~~underwriter~~ underwriters (within the meaning of Section 15 of the Securities ~~Act or Section 20 of the Exchange~~ Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) ~~not misleading, but only~~ to the same extent ~~that any such untrue statement or omission is made in reliance on and in conformity with information~~ as provided above with respect to ~~such Holder furnished in writing to~~ the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess indemnification of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Designated Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partySecurities. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or 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. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Registration Rights Agreement (Critical Path Inc)

Indemnification; Contribution. ~~(a)~~ The ~~Company shall~~ Developer agrees to indemnify and hold ~~harmless~~harmless the Issuer and the Underwriter, to any director, officer, employee or controlling person of the ~~fullest extent permitted by law, each Holder in any offering~~ Issuer or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter the Underwriter within the meaning of Section 15 of the ~~Securities~~ 1933 Act ~~or Section 20 of~~ (collectively, the ~~Exchange Act~~ “Indemnified Parties”), against any and ~~their respective directors, trustees, officers, partners, agents, employees and affiliates against~~ all losses, claims, damages, liabilities ~~and~~ or expenses (including reasonable attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, "Losses") incurred whatsoever caused by ~~such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i)~~ any untrue statements or ~~alleged untrue~~ misleading statement or allegedly misleading statement of a material fact contained ~~in,~~ in the Limited Offering Memorandum or caused by any omission or alleged omission from the Limited Offering Memorandum of a any material fact ~~required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or~~ necessary in order to make the statements ~~therein (in the case of a Prospectus or a preliminary Prospectus~~made therein, in the light of the circumstances ~~then existing)~~ under which they were made, not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders ; provided that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company Developer shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no ~~Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b)~~ indemnification obligation with respect to any ~~amount~~ statement or omission in ~~excess of~~ the ~~amount of~~ information contained in the ~~total net proceeds received by such Holder from sales of~~ Limited Offering Memorandum under the ~~Registrable Securities of such Holder under such Registration Statement~~headings “INTRODUCTION – The Issuer,” NO LITIGATION – The Issuer, and “UNDERWRITING. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. ” In case any ~~such~~ action shall be brought against ~~any indemnified party~~ one or more of the Indemnified Parties based upon the Limited Offering Memorandum and it in respect of which indemnity may be sought against the Developer, the Indemnified Parties shall promptly notify the ~~indemnifying party of~~ Developer in writing and the ~~commencement thereof, the indemnifying party~~ Developer shall ~~be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to~~ promptly assume the defense thereof, ~~with~~ including the employment of counsel, the payment of all expenses and the right to negotiate and consent to settlement. Any one or more of the Indemnified Parties shall have the right to employ separate counsel ~~reasonably satisfactory~~ in any such action and to ~~such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume~~ participate in the defense thereof, the indemnifying party shall not be liable to such 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such ~~additional counsel, provided that~~ counsel shall be at the ~~indemnifying party~~ expense of such Indemnified Party or Indemnified Parties unless employment of such counsel has been specifically authorized by the Developer. The Developer shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any ~~one action or separate but similar or related actions. No indemnifying party, in defense~~ settlement of any such ~~action~~action effected without its consent by any of the Indemnified Parties, ~~suit, proceeding or investigation, shall, except~~ but if settled with the consent of ~~each indemnified party~~the Developer or if there be a final judgment for the plaintiff in any such action against the Developer or any of the Indemnified Parties, ~~consent to the entry of any judgment~~ with or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of ~~each indemnifying party. (d)~~ the Developer, the Developer agrees to indemnify and hold harmless the Indemnified Parties to the extent provided herein. If ~~the~~ a claim for indemnification ~~from the indemnifying party provided for in~~ under this Section 12 is ~~unavailable~~ determined to ~~an indemnified party hereunder in respect to any Losses~~be unenforceable by a final judgment of a court of competent jurisdiction, then the ~~indemnifying party, in lieu of indemnifying such indemnified party,~~ Developer shall contribute to the ~~amount paid~~ aggregate losses, claims, damages or ~~payable by such indemnified party as a result of such Losses~~ liabilities to which the Underwriter or its officers, directors, agents, employees or controlling persons may be subject in such ~~proportion~~ amount as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds benefits received by ~~such Holder from sales of~~ the ~~Registrable Securities of~~ Developer, on the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified partyone hand, and the ~~parties'~~ Underwriter, on the other, and the relative ~~intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result~~ faults of the ~~Losses referred to above shall be deemed to include, subject to~~ Developer and the ~~limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding~~person seeking contribution. 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 parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section ~~12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and~~ shall survive the ~~termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments~~ delivery of the ~~amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred~~2022 Bonds hereunder.

Appears in 1 contract

Samples: Bond Purchase Agreement

Indemnification; Contribution. ~~(a) The Company~~ If any Registrable Securities are included in a registration statement under this Agreement: 7.1. To the extent permitted by applicable law, each of the Trust and the Corporation, severally and not jointly, shall indemnify and hold ~~harmless, to~~ harmless the ~~fullest extent permitted by law, each Holder in any offering or sale of Registrable Securities~~Holder, each Person, if any, who ~~participates as an underwriter in any offering and sale of Registrable Securities, and each Person, if any, who~~ controls ~~such~~ the Holder ~~or such underwriter~~ within the meaning of ~~Section 15 of~~ the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and affiliates against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees, disbursements and expenses, as incurredAct, and ~~any amounts paid in any settlement effected with the Company's consent~~each officer, ~~which consent shall not be unreasonably withheld or delayed) (collectively~~director, ~~"Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out~~ partner and employee of ~~or based upon:~~ the (i) ~~any~~ Any untrue statement or alleged untrue statement of a material fact contained inin such registration statement, including any preliminary prospectus or final prospectus contained therein, or any amendments or supplements thereto; or (ii) The omission or alleged omission of to state therein a material fact required to be stated intherein, ~~the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ or necessary to make the statements therein (not misleading; provided, however, that the indemnification required by this Section 7.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the ~~case of a Prospectus or a preliminary Prospectus, in the light~~ consent of the ~~circumstances then existing)~~ Trust or the Corporation (which consent shall not ~~misleading~~be unreasonably withheld), ~~except~~ nor shall the Trust or the Corporation be liable in ~~each~~ any such case ~~insofar as~~ for any such ~~statements~~ loss, claim, damage, liability or ~~omissions arise~~ expense to the extent that it arises out of or ~~are~~ is based upon ~~(A) any such untrue statement or alleged untrue statement or omission or alleged omission made~~ a Violation which occurs in reliance on upon and in conformity with information ~~with respect~~ furnished to ~~such Holder furnished~~ the Trust or the Corporation by the indemnified party in writing ~~to the Company by such Holder or its counsel~~ expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with ~~any~~ such registration~~. Notwithstanding the foregoing provisions of this Section 12(a)~~; and provided, ~~the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under~~ further, that the indemnity agreement contained in this Section ~~12(a) for~~ 7 shall not apply to the extent that any ~~Losses that arise~~ such loss is based on or arises out of ~~or are based upon~~ an untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission ~~made~~ to state a material fact, contained in or omitted from any ~~Prospectus~~ preliminary prospectus if ~~either (i) (A) such Holder or underwriter failed to send or deliver a copy of~~ the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected final prospectus shall correct such untrue statement or alleged untrue ~~statement~~ statement, or such omission or alleged omission, ~~or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus~~ and ~~(y) having previously been furnished by or on behalf~~ a copy of the ~~Company with copies of the Prospectus as so amended~~ final prospectus has not been sent or ~~supplemented as required hereunder,~~ given to such ~~Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with~~ person at or prior to the ~~delivery of written~~ confirmation of ~~the~~ sale ~~of Registrable Securities by~~ to such person if an underwriter or Holder ~~or underwriter~~ was under an obligation to ~~the Person asserting the claim from which~~ deliver such ~~Losses arise. Such rights~~ final prospectus and failed to ~~indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party~~do so. ~~(b) In connection with any Registration Statement filed pursuant hereto~~7.2. To the extent permitted by applicable law, ~~each~~ the Holder ~~of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders,~~ shall indemnify and hold ~~harmless, to~~ harmless the ~~fullest extent permitted by law~~Trust, the ~~Company~~Corporation, each ~~Person~~of the Trustees of the Trust, ~~if any~~each of the directors of the Corporation, each of the officers of the Trust or the Corporation who ~~participates as an underwriter in any offering and sale of Registrable Securities and~~ shall have signed the registration statement, each Person, if any, who controls the ~~Company~~ Trust or ~~such underwriter~~ the Corporation within the meaning of ~~Section 15 of~~ the Securities ~~Act or Section 20 of the Exchange~~ Act, ~~and their respective directors, trustees, officers, partners, agents, employees and affiliates,~~ against ~~all Losses incurred~~ any 7.3. Promptly after receipt by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other an indemnified party under this Section ~~12(b) with respect to any amount in excess~~ 7 of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, ~~proceeding or~~ proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim ~~indemnification or contribution pursuant~~ under this Section 7, such indemnified party shall deliver to ~~this Agreement, provided that failure to give such notification shall not affect the obligations of~~ the indemnifying party ~~pursuant~~ a written notice thereof and the indemnifying party shall have the right to ~~this Section 12 except~~ participate in, and, to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wishso desires, jointly with any other indemnifying party similarly ~~notified~~noticed, to assume the defense ~~thereof~~thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with ~~counsel reasonably satisfactory~~ the fees and disbursements and expenses to be paid by the indemnifying party, if representation of such indemnified ~~party, and after notice from~~ party by the counsel retained by the indemnifying party would be inappropriate due to ~~such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel~~ actual 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist potential differing interests between ~~the indemnifying party and~~ such indemnified party and any other of party represented by such ~~indemnified parties with respect~~ counsel in such proceeding. The failure to ~~such claim, in which event~~ deliver written notice to the indemnifying party ~~shall not be liable for~~ within a reasonable time following the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense commencement of any such action, ~~suit~~if prejudicial to its ability to defend such action, ~~proceeding~~ shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 to the extent of such prejudice but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses incurred by the indemnified party (including any fees and expenses incurred in connection with investigating or ~~investigation, shall, except with~~ preparing to defend such action or proceeding) shall be paid to the ~~consent of each~~ indemnified party, ~~consent~~ as incurred, within thirty (30) days of written notice thereof to the ~~entry~~ indemnifying party (regardless of ~~any judgment or entry into any settlement which does not include as~~ whether it is ultimately determined that an ~~unconditional term thereof the giving by the claimant or plaintiff to such~~ indemnified party ~~of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability~~ is ~~covered by the indemnity obligations set forth in this Section 12~~not entitled 7.4. ~~No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d)~~ If the indemnification required by this Section 7 from the indemnifying party ~~provided for in this Section 12~~ is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to ~~any Losses, then the~~ in this Section 7: (i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such ~~Losses~~ losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified ~~party~~ parties in connection with the actions which resulted in such ~~Losses~~losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified ~~party~~ parties shall be determined by reference to, among other things~~, whether~~ , (ii) The parties hereto 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 ~~action in question, including any untrue statement or alleged untrue statement~~ other method of ~~a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and~~ allocation which does not take into account the ~~parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses~~ equitable considerations referred to ~~above shall be deemed to include, subject to the limitations set forth~~ in Section ~~12(c~~7.4(i)~~, any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or 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. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). 7.5. If indemnification is available under this Section 127, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section ~~12(a) or 12(b), as the case may be,~~ 7 without regard to the relative fault of such indemnifying ~~parties~~ party or indemnified party or any other equitable consideration ~~provided for~~ referred to in Section 7.4. 7.6. The obligations of the Trust, the Corporation and the Holder under this Section ~~12(d). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and~~ 7 shall survive the ~~termination~~ completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Registration Rights Agreement (Starwood Hotel & Resorts Worldwide Inc)

Indemnification; Contribution. (a) ~~The Company~~ Amicus shall indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each Holder in any offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within (including the ~~meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners~~employees, agents, ~~employees~~ representatives, officers and ~~affiliates~~ directors of GSK and its Affiliates) (each a “GSK Indemnitee”) from and against any and all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) ~~(collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation~~ arising out of or based ~~upon: (i)~~ upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular (as amended or supplemented if Amicus shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, except ~~in each case~~ insofar as ~~such statements~~ the same are caused by or ~~omissions arise out of or are based upon (A)~~ contained in any ~~such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with~~ information ~~with respect to~~ concerning such Holder furnished in writing to ~~the Company~~ Amicus by such Holder ~~or its counsel~~ expressly for use ~~therein, (B)~~ in such Registration Statement. ****** - Material has been omitted and filed separately with the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified partyCommission. (b) ~~In connection with any Registration Statement filed pursuant hereto, each~~ Each Holder ~~of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders,~~ shall indemnify and hold ~~harmless~~harmless Amicus, ~~to the fullest extent permitted by law~~and its respective directors, ~~the Company~~officers, ~~each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities~~ employees and each ~~Person, if any,~~ Person who controls ~~the Company or such underwriter~~ Amicus (within the meaning of ~~Section 15 of~~ the Securities Act ~~or Section 20 of~~ and the Exchange Act) from and against any and all losses, claims, damages, liabilities and ~~their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation~~ expenses (including reasonable costs of investigation) arising out of or based upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular (as amended or supplemented if Amicus shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, ~~but only to the extent that any~~ if such ~~untrue~~ statement or omission is was made in reliance on upon and in conformity with any information ~~with respect to~~ concerning such Holder furnished in writing to ~~the Company~~ Amicus by such Holder ~~or its counsel~~ specifically for use ~~therein; provided, however, that no Holder shall be required to indemnify~~ in the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities preparation of such ~~Holder under such~~ Registration ~~Statement~~Statement or prospectus. (c) ~~Any~~ Each Person entitled to indemnification hereunder (the “Indemnified Party”) agrees to give prompt written notice to the indemnifying party (the “Indemnifying Party”) after the receipt by ~~such indemnified party~~ the Indemnified Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which ~~such indemnified party may~~ the Indemnified Party intends to claim indemnification or contribution pursuant to this Agreement; provided, ~~provided~~ however, that the failure to ~~give such notification~~ so notify the Indemnifying Party shall not ~~affect~~ relieve the ~~obligations~~ Indemnifying Party of any liability that it may have to the ~~indemnifying party pursuant to this Section 12 except~~ Indemnified Party hereunder unless, and only to the extent that, such failure results in the ~~indemnifying party shall have been actually and materially prejudiced as a result~~ Indemnifying Party’s forfeiture of ~~such failure~~substantive rights or defenses. ~~In case~~ If notice of commencement of any such action ~~shall be brought against any indemnified party and it shall notify~~ is given to the ~~indemnifying party of the commencement thereof~~Indemnifying Party as above provided, the ~~indemnifying party~~ Indemnifying Party shall be entitled to participate ~~therein~~ in and, to the extent ~~that~~ it ~~shall~~ may wish, jointly with any other ~~indemnifying party~~ Indemnifying Party similarly notified, to assume the defense ~~thereof~~of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such ~~indemnified party,~~ Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any such action and ~~after notice from the indemnifying party to such indemnified party of its election so to assume~~ participate in the defense thereof, but the ~~indemnifying party shall not be liable to such indemnified party for any legal~~ fees and expenses of ~~other~~ such 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, ) shall be paid by the Indemnified Party unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) ~~more than one~~ the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense of such action with counsel ~~for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be~~ reasonably satisfactory to the ~~Company), (ii) more than one counsel for the underwriters~~ Indemnified Party in ~~an Underwritten Offering~~ its reasonable judgment or (iii) the named parties to any such action (including any impleaded parties) have been advised by such counsel that either (x) representation of such Indemnified Party and the Indemnifying Party by the same counsel would be inappropriate under applicable standards of professional conduct or (y) there may be one or more ~~than one counsel for~~ legal defenses available to it which are different from or additional to those available to the ~~Company~~Indemnifying Party. In either of such cases, ~~in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is~~ the Indemnifying Party shall not ~~entitled to, or elects not to,~~ have the right to assume the defense of ~~a claim~~ such action on behalf of such Indemnified Party. No Indemnifying Party shall be liable for any settlement entered into without its written consent (other than in the case where the Indemnifying Party is unconditionally released from liability and its rights are not adversely effected), which consent shall not be ~~obligated to pay the fees~~ unreasonably withheld. ****** - Material has been omitted and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except filed separately with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyCommission. (d) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 7.5 from the Indemnifying Party pursuant to applicable law is unavailable to an ~~indemnified party~~ Indemnified Party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to ~~any Losses~~therein, then the ~~indemnifying party~~Indemnifying Party, in lieu of indemnifying such ~~indemnified party~~Indemnified Party, shall contribute to the amount paid or payable by such ~~indemnified party~~ Indemnified Party as a result of such ~~Losses~~ losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party in connection with the actions which resulted in such ~~Losses~~losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative ~~fault~~ faults of such ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue ~~statement~~ or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such ~~indemnifying party~~ Indemnifying Party or ~~indemnified party~~Indemnified Party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the ~~Losses~~ losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in ~~Section 12(c~~Sections 7.5(a), (b) and (c), any legal or other ~~fees and~~ fees, charges or expenses reasonably incurred by such ~~indemnified~~ party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.5(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 in the immediately preceding paragraph. 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 parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d)Person. (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Stock Purchase Agreement (Amicus Therapeutics Inc)

Indemnification; Contribution. (a) The Company ~~shall indemnify and hold harmless~~agrees to indemnify, to the ~~fullest~~ extent permitted by law, ~~each Holder in any offering or sale of Registrable Securities~~MRE, ~~each Person~~its officers, ~~if any~~directors, ~~who participates as an underwriter in any offering~~ employees, agents and ~~sale of Registrable Securities,~~ Affiliates and each ~~Person, if any, who~~ Person that controls ~~such Holder or such underwriter~~ (within the meaning of ~~Section 15 of~~ the Securities ~~Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and affiliates~~ Act) MRE against all losses, claims, damages, liabilities and ~~expenses (~~expenses, including ~~reasonable~~ attorneys~~' fees,~~ ’ fees and disbursements and ~~expenses~~expenses of investigation, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i) resulting from any untrue or alleged untrue statement of material fact contained in any registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto, any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, or violation or alleged violation by the Company of the Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law, except insofar as the same are caused by or contained inin any information furnished in writing to the Company by MRE expressly for use therein or by MRE’s failure to deliver a copy of the registration statement or prospectus or any amendments or supplements thereto. (b) In connection with any registration statement in which MRE is participating, MRE shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such registration statement or prospectus and, to the extent permitted by law, shall indemnify the Company, its directors, officers, employees, agents and Affiliates and each Person who controls the Company (within the meaning of the Securities Act and the Exchange Act) against any losses, claims, damages, liabilities and expenses resulting from any untrue or alleged untrue statement of material fact contained in the registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that ~~any~~ such untrue statement or omission is ~~made~~ contained in ~~reliance on and in conformity with information with respect to such Holder~~ any writing furnished ~~in writing to the Company~~ by ~~such Holder or its counsel specifically~~ MRE for use ~~therein; provided~~in such registration statement, ~~however, that no Holder shall be required to indemnify the Company~~ prospectus or preliminary prospectus or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statementamendment or supplement thereto. (c) Any Person entitled to indemnification hereunder ~~agrees to~~ shall (i) give prompt written notice to the indemnifying party ~~after~~ of any claim with respect to which it seeks indemnification (provided that the ~~receipt by~~ failure to give prompt notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment (x) a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim or (y) such indemnified party ~~of any written notice of the commencement of any action, suit, proceeding~~ has one or ~~investigation or threat thereof made in writing for which~~ more defenses to such ~~indemnified party may~~ claim ~~indemnification or contribution pursuant~~ that are not available to ~~this Agreement, provided that failure to give such notification shall not affect the obligations of~~ the indemnifying ~~party pursuant to this Section 12 except to the extent the~~ party, permit such indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense ~~thereof,~~ of such claim with counsel reasonably satisfactory to ~~such~~ the indemnified party~~, and after notice from the indemnifying party to~~ . If such ~~indemnified party of its election so to assume the~~ defense ~~thereof~~is assumed, the indemnifying party shall not ~~be liable to~~ settle such claim unless the 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, unless in the reasonable judgment is released and discharged of any ~~indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party~~ liability and ~~such indemnified party and any other of such indemnified parties with respect to such claim, in which event~~ the indemnifying party shall not be ~~liable~~ subject to any liability for ~~the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected~~ any settlement made by the ~~Holders of a Majority of the Registrable Securities who are~~ indemnified ~~parties~~ party without its consent (~~which selection~~ but such consent shall not be ~~reasonably satisfactory to the Company~~unreasonably withheld), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified ~~party, based on the opinion of counsel,~~ party a conflict of interest ~~is likely to~~ may exist between an such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or 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. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Asset Purchase Agreement (Ethanex Energy, Inc.)

Indemnification; Contribution. (a) The Company ~~shall~~ agrees to indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each ~~Holder in any offering or sale of Registrable Securities,~~ holder and each ~~Person,~~ "person," if any, ~~who participates as an underwriter in any offering and sale of Registrable Securities, and each Person, if any, who~~ that controls such ~~Holder or such underwriter~~ holder within the meaning of Section 15 of the Securities Act ~~or Section 20 of the Exchange Act~~ for, from and ~~their respective directors~~against any and all loss, ~~trustees~~liability, ~~officers~~claim, ~~partners, agents, employees~~ damage and ~~affiliates against all losses, claims, damages, liabilities and expenses~~ expense (including ~~reasonable~~ attorneys' fees~~, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with~~ ) to the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i) extent resulting from any untrue statement or alleged untrue statement of a material fact contained inin any Registration Statement pursuant to which Registrable Securities were registered under the Securities Act (or any amendment thereto), including all documents incorporated therein by reference, or ~~any~~ from the omission or alleged omission therefrom of a material fact required to be stated ~~in,~~ therein or necessary to make the ~~Registration Statement, Prospectus~~ statement therein not misleading or ~~preliminary Prospectus~~ arising out of any untrue statement or alleged untrue statement of a material fact contained in any prospectus (or any amendment or supplement ~~to any~~ thereto), including all documents incorporated therein by reference, or the omission or alleged omission therefrom of ~~the foregoing or~~ a 13 material fact necessary in order to make the statements ~~therein (in the case of a Prospectus or a preliminary Prospectus~~therein, in the light of the circumstances ~~then existing)~~ under which they were made, not misleading, except ~~in each case~~ insofar as ~~such statements or omissions arise out of or are based upon (A)~~ any such ~~untrue statement or alleged untrue statement~~ misstatement or omission or alleged misstatement or omission is made therein in reliance on upon and in conformity with information ~~with respect to such Holder~~ furnished ~~in writing~~ to the Company by such ~~Holder or its counsel~~ holder in writing expressly for use ~~therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the~~ in a Registration Statement ~~of which such Prospectus forms a part has expired~~ (or any amendment thereto) or any prospectus (~~C) the use of~~ or any ~~Prospectus after such time as the Company has advised the Holders that the filing of an~~ amendment or supplement ~~thereto is required, except such Prospectus as so amended or supplemented; or (ii~~thereto) ~~any violation by the Company of any other federal or state securities laws or regulations applicable~~ relating to the ~~Company and relating to action required of or inaction by the Company~~ Registrable Securities. As used in ~~connection with any such registration. Notwithstanding the foregoing provisions of~~ this Section ~~12(a~~5.5(a), the ~~Company~~ term "holder" shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise include its officers, directors and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified partyagents. (b) ~~In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities~~ Each holder agrees to ~~be covered thereby shall, severally and not jointly with any other Holders,~~ indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless the Company, ~~each Person, if any, who participates as an underwriter in any offering~~ its directors and ~~sale of Registrable Securities~~ officers and each ~~Person,~~ "person," if any, who controls the Company ~~or such underwriter~~ within the meaning of Section 15 of the Securities Act ~~or Section 20 of~~ to the ~~Exchange Act~~same extent as the foregoing indemnity from the Company to such holder, ~~and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred~~ but only with respect to information furnished in writing by such ~~party pursuant to~~ holder or on such holder's behalf expressly for use in any ~~actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in,~~ Registration Statement (or any ~~omission~~ amendment thereto) or ~~alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus~~ any prospectus (or any amendment or supplement ~~to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing~~thereto) ~~not misleading, but only~~ relating to the ~~extent~~ Registrable Securities, or any amendment or supplement thereto; provided that the obligations or any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required holder to indemnify the Company ~~or any~~ and the other ~~indemnified party under this Section 12(b) with respect~~ persons referred to ~~any amount in excess of~~ above shall be limited to the ~~amount of the total net~~ proceeds received by such ~~Holder~~ holder from ~~sales~~ the sale of ~~the~~ such Registrable Securities ~~of such Holder under~~ pursuant to such Registration Statement. (c) ~~Any Person~~ If any action or proceeding (including any governmental investigation) shall be brought or asserted against any person entitled to indemnification ~~hereunder agrees to~~ hereunder, the indemnified party shall give prompt written notice to the indemnifying party, and the indemnifying party ~~after~~ shall assume the ~~receipt by~~ defense thereof, including the employment of counsel reasonably satisfactory to the indemnified party, and shall assume the payment of all expenses in connection with such defense. The indemnified party or any controlling person of such indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of ~~any written notice~~ such counsel shall be at the expense of the ~~commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such~~ indemnified party ~~may claim indemnification~~ or ~~contribution pursuant to this Agreement, provided that failure to give~~ such ~~notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent~~ controlling person unless (i) the indemnifying party shall have ~~been actually~~ agreed to pay such fees and ~~materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof,~~ expenses; or (ii) the indemnifying party shall ~~be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified,~~ have failed to assume the defense ~~thereof, with~~ for such action or proceeding and to employ counsel reasonably satisfactory to the indemnified party in any such action or proceeding; or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both the indemnified party or such controlling person and the indemnifying party, and ~~after notice from~~ such indemnified party or such controlling person shall have been advised by counsel that counsel employed by the indemnifying party to would, under applicable professional standards, have a conflict in representing both the indemnifying party and the indemnified party or such controlling person, in which case, if such indemnified person or such controlling person notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of ~~its election so to assume~~ the ~~defense thereof~~indemnifying party, the indemnifying party shall not ~~be liable~~ have the right to ~~such 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~~ assume the defense ~~thereof other than reasonable costs~~ of ~~investigation, unless~~ such action or proceeding of separate but substantially similar or related actions or proceedings in the ~~reasonable judgment~~ 14 same jurisdiction arising out of ~~any indemnified party~~the same general allegations or circumstances, ~~based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party~~ and ~~such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party~~ shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the reasonable fees and expenses of more than one ~~counsel~~ separate firm of attorneys (together with appropriate local counsel) at any time for ~~all parties~~ such indemnified party and such controlling persons, which firm shall be designated, if the holders (or their controlling persons) are the indemnified parties, in writing by ~~such indemnifying party with respect~~ the holders of a majority of the outstanding Registrable Securities owned by holders who are then entitled to such ~~claim, unless~~ indemnity in connection with such action or proceeding and if the ~~reasonable judgment of any~~ Company is the indemnified party, ~~based on~~ by the ~~opinion~~ Company. No party shall be liable for any settlement of ~~counsel~~any such action or proceeding effected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent, or if there is a ~~conflict of interest is likely~~ final judgment for the plaintiff in any such action or proceeding, the indemnifying party agrees to ~~exist between an~~ indemnify and hold harmless such indemnified party and such controlling person from and against any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of loss or liability (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent stated above) by reason of such ~~liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment~~ settlement or ~~entry into any settlement without the consent of each indemnifying party~~judgment. (di) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 5.5 is unavailable to an indemnified party hereunder in respect to of any ~~Losses~~losses, claims, damages, liabilities or expenses, then ~~the~~ each such indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such ~~Losses~~ losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the ~~indemnifying~~ indemnified party and ~~indemnified~~ the indemnifying party in connection with the ~~actions~~ statements or omissions which resulted in such ~~Losses~~losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of ~~such indemnifying~~ the indemnified party and ~~indemnified~~ the indemnifying party shall be determined by reference to, among other things, whether ~~any action in question, including any~~ the untrue ~~statement~~ or alleged untrue statement of a material fact or the omission or alleged omission to state a material ~~fact, has been made by, or~~ fact relates to information supplied ~~by,~~ by such ~~indemnifying party or indemnified~~ party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such ~~action~~statement or omission. (ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5.5(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 in the immediately preceding paragraph. The amount paid or payable by a an indemnified party as a result of the ~~Losses~~ losses, claims, damages, expenses, liabilities, or judgements referred to ~~above~~ in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth ~~in Section 12(c)~~above, any legal or other ~~fees and~~ expenses reasonably incurred by such indemnified party in connection with investigating or defending any ~~investigation~~ such action or ~~proceeding~~claim. Notwithstanding the provisions of this Section 5.5(d), no holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of such selling holder were offered to the public pursuant to such Registration Statement exceeds the amount of any damages which such selling holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No ~~Person~~ person found guilty by a court of competent jurisdiction 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 found guilty by a court of competent jurisdiction of such fraudulent misrepresentation. ~~The parties agree that it would not be just and equitable if contribution pursuant to~~ 15 (e) Neither the Company nor the holders shall have any obligation under this Agreement (other than as set forth in this Section ~~12(d~~5.5) ~~were determined by pro rata allocation~~ to provide the other with indemnification or by contribution in respect of any ~~other method of allocation that does not take into account the consideration~~ losses, claims, damages, liabilities or expenses referred to in this Section ~~12(d). If indemnification is available under this Section 12~~5.5; provided, however, that the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section 12 5.5 shall ~~be in addition to any~~ not relieve an indemnifying party from liability which ~~any indemnifying party~~ it may have to ~~any~~ an indemnified party ~~and shall survive~~ other than with respect to the ~~termination of this Agreement. (f) The indemnification and contribution required by~~ matters referred to in this Section ~~12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred~~5.5.

Appears in 1 contract

Samples: Private Placement Memorandum (Soy Environmental Products Inc)

Indemnification; Contribution. (a) Indemnification by the Company. The Company ~~shall~~ agrees to ------------------------------- indemnify and hold harmless, to the fullest extent permitted by law, each ~~Holder in any offering or sale of Registrable Securities~~Designated Holder, ~~each Person~~its officers, ~~if any~~directors, ~~who participates as an underwriter in any offering~~ trustees, partners, employees, advisors and ~~sale of Registrable Securities,~~ agents and each ~~Person, if any,~~ Person who controls ~~such Holder or such underwriter~~ (within the meaning ~~of Section 15~~ of the Securities Act or ~~Section 20 of~~ the Exchange ~~Act~~ Act) such Designated Holder from and ~~their respective directors, trustees, officers, partners, agents, employees~~ against any and ~~affiliates against~~ all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) ~~(collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation~~ arising out of or based ~~upon: (i)~~ upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, except ~~in each case~~ insofar as the same are caused by or contained in any information concerning such statements or omissions arise out of or are based upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Designated Holder furnished in writing to the Company by such Designated Holder ~~or its counsel~~ expressly for use therein, ~~(B)~~ including, without limitation, the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable information furnished to the Company ~~and relating~~ pursuant to ~~action required of or inaction by the Company in connection with any such registration~~Section 8(b). ~~Notwithstanding the foregoing provisions of this Section 12(a), the~~ The Company shall ~~not be liable~~ also provide customary indemnities to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer underwriters of the Registrable ~~Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto~~Securities, ~~each Holder of Registrable Securities to be covered thereby shall~~their officers, ~~severally~~ directors and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities employees and each ~~Person, if any,~~ Person who controls ~~the Company or~~ such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. No Person guilty of fraudulent misrepresentation (within the meaning of ~~Section 11(f~~the Securities Act and the Exchange Act) to the same extent as provided above with respect to the indemnification of the ~~Securities Act) shall be entitled to contribution from any Person who was not guilty~~ Designated Holders of such fraudulent misrepresentation. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d)Registrable Securities. (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Registration Rights Agreement (Synapse Group Inc)

Indemnification; Contribution. (a) The Company shall indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each Holder in any offering or sale of Registrable ~~Securities~~Shares, each Person, if any, who participates as an underwriter in any offering and sale of Registrable ~~Securities~~Shares, and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and affiliates against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' ’ fees, disbursements and expenses, as incurred~~, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~) (collectively, "“Losses"”) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based ~~upon: (i)~~ upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (Ai) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (Bii) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (Ciii) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable ~~Securities~~ Shares to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable ~~Securities~~ Shares and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section ~~12(b~~11(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable ~~Securities~~ Shares of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 11 except to the extent the indemnifying party shall have been actually ~~and materially~~ prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the written opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable ~~Securities~~ Shares who are indemnified parties, selected by the Holders of ~~a Majority of~~ the Registrable ~~Securities~~ Shares who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the written opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable ~~Securities~~ Shares who are indemnified parties, selected by the Holders of ~~a Majority of~~ the Registrable ~~Securities~~ Shares who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 1211. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 12 11 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable ~~Securities~~ Shares of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section ~~12(c~~11(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or 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. The parties agree that it would not be just and equitable if contribution pursuant to this Section ~~12(d~~11(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section ~~12(d~~11(d). If indemnification is available under this Section 1211, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section ~~12(a~~11(a) or ~~12(b~~11(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section ~~12(d~~11(d). (e) The provisions of this Section 12 11 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Registration Rights Agreement (ESAB Corp)

Indemnification; Contribution. (a) Indemnification by the Company. The Company ~~shall~~ agrees ------------------------------ to indemnify and hold ~~harmless~~harmless each Designated Holder, ~~to the fullest extent permitted by law~~its partners, ~~each Holder in any offering or sale of Registrable Securities~~directors, ~~each Person~~officers, ~~if any, who participates as an underwriter in any offering and sale of Registrable Securities,~~ affiliates and each ~~Person, if any,~~ Person who controls ~~such Holder or such underwriter~~ (within the meaning of Section 15 of the Securities ~~Act or Section 20 of the Exchange Act~~ Act) such Designated Holder from and ~~their respective directors, trustees, officers, partners, agents, employees~~ against any and ~~affiliates against~~ all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) (each, a "Liability" and collectively, "~~Losses~~Liabilities"~~) incurred by such party pursuant to any actual or threatened action~~), ~~suit, proceeding or investigation~~ arising --------- ----------- out of or based ~~upon: (i)~~ upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of~~ not misleading under the circumstances ~~then existing) not misleading~~such statements were made, except ~~in each case~~ insofar as such ~~statements or omissions arise~~ Liability arises out of or ~~are~~ is based upon ~~(A)~~ any ~~such~~ untrue statement or alleged untrue statement or omission or alleged omission ~~made~~ contained in such Registration Statement, preliminary prospectus or final prospectus in reliance on and in conformity with information ~~with respect to~~ concerning such Designated Holder furnished in writing to the Company by such Designated Holder ~~or its counsel~~ expressly for use therein, ~~(B)~~ including, without limitation, the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable information furnished to the Company ~~and relating~~ pursuant to ~~action required of or inaction by the Company in connection with any such registration~~Section 8(b). ~~Notwithstanding the foregoing provisions of this Section 12(a), the~~ The Company shall ~~not be liable~~ also provide customary indemnities to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer underwriters of the Registrable ~~Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto~~Securities, ~~each Holder of Registrable Securities to be covered thereby shall~~their officers, ~~severally~~ directors and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities employees and each ~~Person, if any,~~ Person who controls ~~the Company or~~ such ~~underwriter~~ underwriters (within the meaning of Section 15 of the Securities ~~Act or Section 20 of the Exchange~~ Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) ~~not misleading, but only~~ to the same extent ~~that any such untrue statement or omission is made in reliance on and in conformity with information~~ as provided above with respect to ~~such Holder furnished in writing to~~ the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess indemnification of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Designated Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partySecurities. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or 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. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Registration Rights Agreement (Sra International Inc)

Indemnification; Contribution. (a) ~~The~~ Indemnification by the Company. In connection with any ------------------------------ Registration Statement, the Company shall ~~indemnify and hold harmless~~indemnify, to the ~~fullest~~ full extent permitted by law, each Holder ~~in any offering or sale of Registrable Securities~~and Other Approved Holder, its officers, directors, employees, general partners, limited partners, representatives and agents, each ~~Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities, and each Person, if any,~~ Person who controls such Holder ~~or such underwriter~~ and Other Approved Holder, (within the meaning of ~~Section 15 of~~ the Securities ~~Act~~ Act) and any investment adviser thereof or ~~Section 20 of the Exchange Act and their respective directors~~agent therefor, ~~trustees, officers, partners, agents, employees and affiliates~~ against all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements~~ costs of investigation and legal fees and expenses~~, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~) (collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i) any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained inin any Registration Statement, any related Prospectus or preliminary prospectus, or any amendment or supplement thereto, or any omission or alleged omission of to state in any thereof a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein (in the case of a ~~Prospectus or preliminary~~ Prospectus, in ~~the~~ light of the circumstances ~~then existing~~under which they were made) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses, in each case ~~subsequently incurred by such indemnified party~~insofar, in connection with the defense thereof other than reasonable costs of investigation, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Lossesonly insofar, as ~~well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess~~ the same arises out of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any or is based upon an untrue statement or alleged untrue statement of a material fact or an omission or alleged omission to state a material ~~fact~~fact in such Registration Statement, ~~has been made by~~Prospectus, preliminary prospectus, amendment or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or 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. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b)supplement, as the case may be, ~~without regard~~ made or omitted, as the case may be, in reliance upon and in conformity with written information furnished to the ~~relative fault of~~ Company by such ~~indemnifying parties or indemnified party or any other equitable consideration provided~~ Holder and Other Approved Holder, expressly for ~~in this Section 12(d). (e) The provisions of this Section 12 shall be~~ use therein. This indemnity is in addition to any liability ~~which~~ that the Company may otherwise have. The Company shall also indemnify any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments underwriters of the ~~amount thereof during~~ Registrable Securities and Common Stock, selling brokers, dealer managers and similar securities industries professionals participating in the ~~course~~ distribution and their officers, directors, employees, general partners, limited partners, representatives and agents, and each Person who controls such underwriters or other Persons (within the meaning of ~~any action, suit, proceeding or investigation,~~ the Securities Act) to the same extent as provided above with respect to the indemnification of Holders and ~~when invoices are received or Losses are incurred~~Other Approved Holders and other specified Persons.

Appears in 1 contract

Samples: Registration Rights Agreement (Specialty Catalog Corp)

Indemnification; Contribution. (a) The Company ~~shall~~ agrees to indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each Holder ~~in any offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities,~~ and each ~~Person~~person, if any, who controls ~~such~~ any Holder ~~or such underwriter~~ within the meaning of either Section 15 of the ~~Securities~~ Act or Section 20 of the Exchange Act from and ~~their respective directors, trustees, officers, partners, agents, employees~~ against any and ~~affiliates against~~ all losses, claims, ~~damages~~damages and liabilities (including, ~~liabilities and~~ without limitation, any legal or other expenses ~~(including reasonable attorneys' fees, disbursements and expenses, as incurred, and~~ reasonably incurred in connection with defending or investigating any ~~amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld~~ such action or ~~delayed~~claim) ~~(collectively, "Losses") incurred~~ caused by ~~such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon:~~ (i) any untrue statement or alleged untrue statement of a material fact contained inin any Registration Statement or any amendment thereof, including all documents incorporated therein by reference, or ~~any~~ the omission or alleged omission therefrom of a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein not misleading or (~~in the case~~ ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary Prospectus or any Prospectus (or amendment or supplement thereto) or the omission or alleged omission therefrom of a ~~preliminary Prospectus~~material fact necessary in order to make the statements therein, in the light of the circumstances ~~then existing)~~ under which they were made, not misleading, ; except ~~in each case~~ insofar as such ~~statements~~ losses, claims, damages or ~~omissions arise out of or~~ liabilities are ~~based upon (A)~~ caused by any such untrue statement or omission or alleged untrue statement or omission ~~or alleged omission made in reliance on and in conformity with~~ based upon information ~~with respect~~ relating to ~~such~~ any Holder furnished ~~in writing~~ to the Company in writing by such Holder ~~or its counsel~~ expressly for use therein~~, (B)~~ . The Company shall also indemnify each Exchanging Dealer participating in the ~~use of any Prospectus after such time as the obligation~~ offering and sale of the ~~Company~~ Notes and each person who controls any such Exchanging Dealer (within the meaning of Section 15 of the Act or Section 20 of the Exchange Act) to ~~keep effective~~ the ~~Registration Statement~~ same extent and with the same limitations as provided above with respect to the indemnification of ~~which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised~~ the Holders ~~that~~ of the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registrationNotes. ~~Notwithstanding the~~ The foregoing ~~provisions of this Section 12(a)~~notwithstanding, the Company shall not be liable to ~~any~~ the extent that such ~~Holder~~ losses, claims, damages or ~~underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that~~ liabilities arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus that is a preliminary Prospectus if ~~either~~ (i) ~~(A)~~ such ~~Holder or underwriter~~ indemnified person failed to send or deliver a copy of the Prospectus with or prior to the delivery of or written confirmation of the sale of ~~Registrable Securities by~~ the Notes giving rise to such ~~Holder~~ losses, claims, damages or ~~underwriter to the Person asserting the claim from which such Losses arise~~ liabilities and (Bii) the Prospectus would have corrected such untrue statement or ~~alleged untrue statement or such omission or alleged~~ omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) ~~In connection with any Registration Statement filed pursuant hereto, each~~ Each Holder ~~of Registrable Securities to be covered thereby shall~~agrees, severally and not ~~jointly with any other Holders~~jointly, to indemnify and hold ~~harmless, to~~ harmless the ~~fullest extent permitted by law~~Company, the Company's directors, ~~each Person~~the Company's officers who sign a Registration Statement, ~~if any, who participates as an underwriter in any offering and sale of Registrable Securities~~ and each ~~Person~~person, if any, who controls the Company ~~or such underwriter~~ within the meaning of either Section 15 of the ~~Securities~~ Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or any amendment thereof, any preliminary Prospectus or any Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only the reference to information relating to such Holder furnished to the Company in writing by such Holder expressly for use in such Registration Statement, preliminary Prospectus, Prospectus or any amendments or supplements thereto. In no event shall the liability of any Holder of the Notes hereunder be greater in amount than the net dollar amount of the proceeds received by such Holder from the sale of the Notes giving rise to such indemnification obligation. (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 either of the two proceeding paragraphs, such person (the "indemnified party") shall promptly notify the person against ----------------- whom such indemnity may be sought (the "indemnifying party") in writing and ------------------ the indemnifying party, upon request of the indemnified party, shall 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 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. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (a) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Holders and all persons, if any, who control any Holders within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (~~in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing~~b) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one ~~counsel~~ separate firm (in addition to any local counsel) for the Company and each person, if any, who controls the Company within the meaning of either such Section, and that all ~~parties indemnified by~~ such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses shall be reimbursed as they are incurred. In the case of any such ~~additional counsel~~separate firm for the Company and any such control persons of the Company, ~~provided that~~ such firm shall be designated in writing by the Company. In the case of any such separate firm for the Holders or any such control persons of any Holders, such firm shall be designated in writing on behalf of the Majority Holders. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, 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 or 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 ~~one counsel for all Holders of Registrable Securities who are indemnified parties, selected~~ 30 days after receipt by ~~the Holders of a Majority~~ such indemnifying party of the ~~Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company),~~ aforesaid request and (ii) ~~more than one counsel for~~ such indemnifying party shall not have reimbursed the ~~underwriters~~ indemnified party in ~~an Underwritten Offering or (iii) more than one counsel for~~ accordance with such request prior to the ~~Company, in each case in connection with any one action or separate but similar or related actions~~date of such settlement. No indemnifying ~~party, in defense of any such action, suit, proceeding or investigation,~~ party shall, ~~except with~~ without the prior written consent of ~~each~~ the indemnified party, ~~consent to the entry~~ effect any settlement of any ~~judgment~~ pending or ~~entry into~~ threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement ~~which does not include as~~ includes an unconditional ~~term thereof the giving by the claimant or plaintiff to~~ release of such indemnified party ~~of a release~~ from all liability ~~in respect to~~ on claims that are the subject matter of such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyproceeding. (d) If To the extent the indemnification ~~from the indemnifying party~~ provided for in paragraph (a) or (b) of this Section 12 6 is unavailable to an indemnified party ~~hereunder~~ or insufficient in respect of any losses, claims, damages or liabilities referred to ~~any Losses~~herein, then ~~the~~ each indemnifying ~~party, in lieu of indemnifying such indemnified party,~~ party shall contribute to the amount paid or payable by such indemnified party as a result of such ~~Losses~~ losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party in connection with the ~~actions~~ statements or omissions which resulted in such ~~Losses~~losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether ~~any action in question, including any~~ the untrue ~~statement~~ or alleged untrue statement of a material fact or omission or alleged omission to state a material ~~fact, has been made by, or~~ fact relates to information supplied ~~by,~~ by such indemnifying party or by such indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such ~~action~~statement or omission. The ~~amount paid or payable by a party as a result~~ Holders' respective obligations to contribute pursuant to this paragraph are several in proportion to the respective number of the ~~Losses referred~~ Notes they have sold pursuant to ~~above shall be deemed to include~~a Registration Statement, ~~subject to~~ and not joint. (e) The Company and the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or 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. The parties Holders agree that it would not be just ~~and~~ or equitable if contribution pursuant to ~~this~~ Section ~~12(d~~6(d) were determined by pro rata allocation or by any other method of allocation that does not take ~~into~~ account of the ~~consideration~~ equitable considerations referred to in paragraph (d) of this Section ~~12(d)~~6. ~~If indemnification is available under~~ The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities referred to in paragraph (d) of this Section 126 shall be deemed to include, subject to the ~~indemnifying parties shall indemnify each~~ limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 6, a Holder of the Notes shall not be required to contribute any amount in excess of the amount by which the total price at which the Notes sold by such indemnifying party and distributed to the ~~full extent provided in Section 12(a) or 12(b), as the case may be, without regard~~ public were offered to the ~~relative fault~~ public pursuant to any Registration Statement exceeds the amount of any damages which such indemnifying party has otherwise been required to pay by reason of such ~~indemnifying parties~~ untrue or ~~indemnified party~~ alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any ~~other equitable consideration~~ person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section ~~12(d). (e) The provisions of this Section 12~~ 6 are not exclusive and shall not limit any rights or remedies which may otherwise be ~~in addition to any liability which any indemnifying party may have~~ available to any indemnified party ~~and shall survive the termination of this Agreement~~at law or in equity. (f) The ~~indemnification~~ indemnity and contribution ~~required by~~ provisions contained in this Section 12 6 shall be remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by ~~periodic payments of the amount thereof during the course~~ or on behalf of any ~~action~~Holder or any person controlling any Holder, ~~suit, proceeding~~ or ~~investigation, as~~ the Company or any person controlling the Company and ~~when invoices are received or Losses are incurred~~(iii) the sale of any Notes by any Holder.

Appears in 1 contract

Samples: Registration Rights Agreement (McKesson Corp)

Indemnification; Contribution. (a) ~~The Company shall indemnify~~ In connection with any registration of Registrable Securities or Underwritten Offering pursuant to Section 2.01, Section 2.02 or Section 2.03, Invesco will indemnify, defend and hold ~~harmless~~harmless each Shareholder, ~~to the fullest extent permitted by law~~its Affiliates, ~~each Holder in any offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering~~ its and ~~sale of Registrable Securities,~~ their Representatives and each ~~Person, if any,~~ Person who controls such ~~Holder or such underwriter~~ Shareholders within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”) from and ~~their respective directors, trustees, officers, partners, agents, employees~~ against any and ~~affiliates against~~ all ~~losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees, disbursements and expenses~~Losses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising that arise out of or are based ~~upon: (i)~~ upon any untrue statement, or alleged untrue ~~statement~~ statement, of a material fact contained inor incorporated by reference in any part of any Registration Statement or any Prospectus, including any amendment or supplement thereto, used in connection with the Registrable Securities, or any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein (in the case of a ~~Prospectus or a preliminary~~ Prospectus, in the light of the circumstances ~~then existing~~under which they were made) not misleading; provided, ~~except in each case insofar as~~ however, that Invesco will not be required to indemnify any Indemnified Person for any such ~~statements or omissions arise~~ Loss arising out of or ~~are based upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information~~ with respect to ~~such Holder furnished in writing~~ sales pursuant to ~~the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective~~ the Registration Statement ~~of which such~~ or Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon ~~an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either~~ Shareholder Information (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified partydefined below). (b) In connection with any Registration Statement ~~filed pursuant hereto~~or Prospectus, ~~each Holder of~~ the Shareholders who sell Registrable Securities pursuant to ~~be covered thereby shall~~such Registration Statement or Prospectus will severally, ~~severally and~~ but not ~~jointly with any other Holders~~jointly, ~~indemnify~~ indemnify, defend and hold ~~harmless~~harmless Invesco, ~~to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering~~ its Affiliates and ~~sale of Registrable Securities~~ its and their Representatives and each Person, if any, who controls ~~the Company or such underwriter~~ Invesco (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as the foregoing indemnity from Invesco to the Shareholders, ~~and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred~~ but only with respect to information furnished in writing by such ~~party pursuant to~~ Shareholder or on such Shareholder’s behalf (in each case, in its capacity as a Shareholder), in either case expressly for use in any ~~actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in,~~ Registration Statement or any ~~omission or alleged omission of a material fact required to be stated in~~Prospectus, ~~the Registration Statement, Prospectus or preliminary Prospectus or~~ including any amendment or supplement ~~to any of~~ thereto (“Shareholder Information”); provided that the ~~foregoing or necessary to make the statements therein (in case~~ total obligations of a ~~Prospectus or preliminary Prospectus~~Shareholder under this Agreement (including arising under Section 2.11(d), ~~in the light of the circumstances then existing~~herein) ~~not misleading, but only~~ will be limited to an amount equal to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds actually received by such ~~Holder~~ Shareholder (after deducting any discounts and commissions) from ~~sales~~ the disposition of ~~the~~ Registrable Securities ~~of such Holder under~~ pursuant to such Registration ~~Statement~~Statement or Prospectus. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any claim, action or proceeding (including any governmental investigation) is instituted involving any Person in respect of which indemnity may be sought pursuant to Section 2.11 (a) or Section 2.11(b), such ~~action shall be brought against any indemnified party and it shall~~ Person (the “Indemnified Party”) will promptly notify the ~~indemnifying party of~~ Person against whom such indemnity may be sought (the ~~commencement thereof,~~ “Indemnifying Party”) in writing and the ~~indemnifying party~~ Indemnifying Party shall be entitled to participate therein and, to the extent ~~that~~ it shall wish~~, jointly with any other indemnifying party similarly notified~~, to assume the defense ~~thereof,~~ thereof with counsel reasonably satisfactory to the Indemnified Party and will pay the fees and disbursements of such ~~indemnified party, and after notice from the indemnifying party~~ counsel related to such ~~indemnified party~~ proceeding; provided, however, that the failure or delay to give such notice shall not relieve the Indemnifying Party of its ~~election so~~ obligations pursuant to ~~assume~~ this Agreement except to the ~~defense thereof, the indemnifying party~~ extent that it shall ~~not~~ be ~~liable to~~ determined by a court of competent jurisdiction that such ~~indemnified party for any legal expenses of other counsel or any other expenses, in each case subsequently incurred~~ Indemnifying Party has been prejudiced by such ~~indemnified party, in connection with the defense thereof other than reasonable costs of investigation, unless in the reasonable judgment of~~ failure or delay. In any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, action or proceeding, the Indemnified Party shall have the right, but not the obligation, to participate in ~~which event the indemnifying party shall not be liable for~~ any such defense and to retain its own counsel, but the fees and expenses of such counsel will be at the expense of such Indemnified Party unless (i) ~~more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by~~ the ~~Holders of a Majority of~~ Indemnifying Party and the ~~Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory~~ Indemnified Party have mutually agreed to the ~~Company)~~retention of such counsel, (ii) ~~more than one counsel for~~ the ~~underwriters in an Underwritten Offering~~ Indemnifying Party fails to assume the defense of the claim, action or proceeding within thirty (30) days following receipt of notice from the Indemnified Party or (iii) the Indemnified Party and the Indemnifying Party are both actual or potential defendants in, or targets of, any such action and the Indemnified Party has been advised by counsel that representation of both parties by the same counsel would be inappropriate due to actual or potential conflicting interests between them or that there may be one or more ~~than one counsel for~~ legal defenses available to such Indemnified Party which are not available to the ~~Company~~Indemnifying Party. It is understood that the Indemnifying Party will not, ~~in each case~~ in connection with any ~~one~~ claim, action or ~~separate but similar~~ proceeding or related ~~actions. An indemnifying party who is not entitled to~~claims, actions or ~~elects not to~~proceedings in the same jurisdiction, ~~assume~~ be liable for the ~~defense of a claim shall not be obligated to pay the~~ reasonable fees and expenses of more than one ~~counsel~~ (1) separate firm of attorneys (in addition to local counsel) at any time for all ~~parties indemnified by~~ such ~~indemnifying party with respect to~~ Indemnified Parties and that all such ~~claim, unless in the~~ reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses will be reimbursed as they are incurred. In the case of the retention of any such ~~additional counsel~~separate firm for the Indemnified Parties, such firm will be designated in writing by the Indemnified Parties (provided that in the ~~indemnifying party shall~~ case of the holders of Registrable Securities, such firm will be designated by holders of a majority of the Registrable Securities sold under the applicable Registration Statement). The Indemnifying Party will not be liable for any settlement of any claim, action or proceeding effected without its written consent (which consent shall not be unreasonably withheld, conditioned or delayed), but if such claim, action or proceeding is settled with such consent or if there has been a final judgment for the ~~fees~~ plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and ~~expenses~~ against any Loss by reason of such settlement or judgment. No Indemnifying Party will, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any pending or threatened proceeding in respect of which any Indemnified Party is seeking indemnity hereunder, unless such settlement includes (i) ~~more than one counsel for~~ an unconditional release of such Indemnified Party from all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company)liability in connection with such proceeding, (ii) ~~more than one counsel for~~ no finding or admission of any violation of Law or any violation of the ~~underwriters in an Underwritten Offering~~ rights of any Person by the Indemnified Party or any of its Affiliates can be made as the result of such action and (iii) ~~more than one counsel for~~ the ~~Company,~~ sole relief (if any) provided is monetary damages that are reimbursed in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving full by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyIndemnifying Party. (d) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 2.11 from the Indemnifying Party is unavailable to an ~~indemnified party~~ Indemnified Party hereunder or is insufficient in respect of any Losses referred to ~~any Losses~~in this Section 2.11 that would not have been excluded by Sections 2.11(a) or 2.11(b), then the ~~indemnifying party~~Indemnifying Party, in lieu of indemnifying such ~~indemnified party~~Indemnified Party, ~~shall~~ will contribute to the amount paid or payable by such ~~indemnified party~~ Indemnified Party as a result of such Losses (i) in such proportion as is appropriate to reflect the relative fault of the ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party in connection with the actions ~~which~~ that resulted in such Losses, as well as any other relevant equitable considerations~~; provided~~, ~~however~~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 fault referred to in clause (i) but also the relative benefit of Invesco, on the one hand, and such Shareholder, on the other, in connection with the statements or omissions that ~~no Holder shall be required to contribute~~ resulted in such Losses, as well as any ~~amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement~~other relevant equitable considerations. The relative fault of such ~~indemnifying party~~ Indemnifying Party and ~~indemnified party shall~~ Indemnified Party will be determined by reference to, among other things, whether any action in question, including any untrue ~~statement~~ or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been ~~made~~ taken by, or relates to information supplied by, such ~~indemnifying party~~ Indemnifying Party or ~~indemnified party~~Indemnified Party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of the Losses referred to above ~~shall~~ will be deemed to include, subject to the limitations set forth in Section ~~12(c~~2.11(c), any reasonable legal or other out of pocket fees ~~and~~ or expenses reasonably incurred by such ~~indemnified~~ party in connection with any investigation or proceeding. ~~No Person guilty of fraudulent misrepresentation (within~~ The Shareholders’ obligations to contribute pursuant to this Section 2.11(d), if any, are several in proportion to the ~~meaning of Section 11(f)~~ net amount that the proceeds of the ~~Securities Act~~offering actually received by such Shareholder bears to the total proceeds of the offering received by all holders of Registrable Securities, and not joint. (e) ~~shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.~~ The parties agree that it would not be just and equitable if contribution pursuant to ~~this~~ Section ~~12(d~~2.11(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the ~~consideration~~ equitable considerations referred to in ~~this~~ Section ~~12(d~~2.11(d). ~~If indemnification is available under this~~ No Person guilty of “fraudulent misrepresentation” (within the meaning of Section ~~12,~~ 11(f) of the ~~indemnifying parties shall indemnify each indemnified party~~ Securities Act) will be entitled to ~~the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault~~ contribution from any Person who was not guilty of such ~~indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d)~~fraudulent misrepresentation. (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Shareholder Agreement (Invesco Ltd.)

Indemnification; Contribution. (a) ~~The Company shall indemnify~~ In connection with any registration of Registrable Securities or Underwritten Offering pursuant to ‎Section 2.01, ‎Section 2.02 or ‎Section 2.03, Boron will indemnify, defend and hold ~~harmless~~harmless each Shareholder, ~~to the fullest extent permitted by law~~its Affiliates, ~~each Holder in any offering or sale of Registrable Securities~~directors, ~~each Person~~officers, ~~if any, who participates as an underwriter in any offering~~ shareholders and ~~sale of Registrable Securities,~~ employees and each ~~Person, if any,~~ Person who controls such ~~Holder or such underwriter~~ Shareholders within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and affiliates against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, ~~"Losses"~~the “Indemnified Persons”) ~~incurred~~ from and against any and all Losses caused by ~~such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i)~~ any untrue or alleged untrue statement of a material fact contained inor incorporated by reference in any part of any Registration Statement or any Prospectus, including any amendment or supplement thereto, used in connection with the Registrable Securities, or any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein (in the case of a ~~Prospectus or a preliminary~~ Prospectus, in the light of the circumstances ~~then existing~~under which they were made) not misleading; provided, ~~except in each case insofar as~~ however, that Boron will not be required to indemnify any Indemnified Person for any such ~~statements or omissions arise~~ Loss arising out of or ~~are based upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information~~ with respect to ~~such Holder furnished in writing~~ sales pursuant to ~~the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective~~ the Registration Statement ~~of which such~~ or Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon ~~an untrue statement~~ information in the Registration Statement or ~~alleged untrue statement~~ Prospectus that was represented by Silicon or ~~omission or alleged omission made~~ Silicon Holdings as true and correct in ~~any Prospectus if either (i) (A)~~ the Merger Agreement, and with respect to which Xxxxx would not have been reasonably expected to discover the failure of such ~~Holder or underwriter failed~~ information to ~~send or deliver a copy of the Prospectus with or~~ be true and correct prior to the ~~delivery~~ date of ~~written confirmation of the sale of Registrable Securities by~~ such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified partysales. (b) In connection with any Registration Statement ~~filed pursuant hereto~~or Prospectus, ~~each Holder of~~ the Shareholders who sell Registrable Securities pursuant to ~~be covered thereby shall,~~ such Registration Statement or Prospectus will severally ~~and~~ but not jointly ~~with any other Holders~~indemnify, ~~indemnify~~ defend and hold ~~harmless~~harmless Boron, ~~to the fullest extent permitted by law~~its directors, ~~the Company~~its officers, ~~each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities~~ its employees and each Person, if any, who controls ~~the Company or such underwriter~~ Boron (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as the foregoing indemnity from Boron to the Shareholders, ~~and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant~~ but only with respect to ~~any actual action, suit, proceeding or investigation~~ information arising out of or based upon information furnished in writing by such Shareholder or on such Shareholder’s behalf (in each case, in its capacity as a Shareholder), in either case expressly for use in any ~~untrue or alleged untrue statement of a material fact contained in,~~ Registration Statement or any ~~omission or alleged omission of a material fact required to be stated in~~Prospectus, ~~the Registration Statement, Prospectus or preliminary Prospectus or~~ including any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statementthereto. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any claim, action or proceeding (including any governmental investigation) is instituted involving any Person in respect of which indemnity may be sought pursuant to ‎Section 2.11(a) or ‎Section 2.11(b), such ~~action shall be brought against any indemnified party and it shall~~ Person (the “Indemnified Party”) will promptly notify the ~~indemnifying party of~~ Person against whom such indemnity may be sought (the ~~commencement thereof,~~ “Indemnifying Party”) in writing and the ~~indemnifying party~~ Indemnifying Party shall be entitled to participate therein and, to the extent ~~that~~ it shall wish~~, jointly with any other indemnifying party similarly notified~~, to assume the defense ~~thereof,~~ thereof with counsel reasonably satisfactory to the Indemnified Party and will pay the fees and disbursements of such ~~indemnified party, and after notice from the indemnifying party~~ counsel related to such ~~indemnified party~~ proceeding; provided, however, that the failure or delay to give such notice shall not relieve the Indemnifying Party of its ~~election so~~ obligations pursuant to ~~assume~~ this Agreement except to the ~~defense thereof, the indemnifying party~~ extent that it shall ~~not~~ be ~~liable to~~ determined by a court of competent jurisdiction that such ~~indemnified party for any legal expenses of other counsel or any other expenses, in each case subsequently incurred~~ Indemnifying Party has been prejudiced by such ~~indemnified party, in connection with the defense thereof other than reasonable costs of investigation, unless in the reasonable judgment of~~ failure or delay. In any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, action or proceeding, the Indemnified Party shall have the right, but not the obligation, to participate in ~~which event the indemnifying party shall not be liable for~~ any such defense and to retain its own counsel, but the fees and expenses of such counsel will be at the expense of such Indemnified Party unless (i) ~~more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by~~ the ~~Holders of a Majority of~~ Indemnifying Party and the ~~Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory~~ Indemnified Party have mutually agreed to the ~~Company)~~retention of such counsel, (ii) ~~more than one counsel for~~ the ~~underwriters in an Underwritten Offering~~ Indemnifying Party fails to assume the defense of the claim, action or proceeding within fifteen (15) Business Days following receipt of notice from the Indemnified Party or (iii) ~~more than one~~ the Indemnified Party and the Indemnifying Party are both actual or potential defendants in, or targets of, any such action and the Indemnified Party has been advised by counsel ~~for~~ that representation of both parties by the ~~Company~~same counsel would be inappropriate due to actual or potential conflicting interests between them. It is understood that the Indemnifying Party will not, ~~in each case~~ in connection with any ~~one~~ claim, action or ~~separate but similar~~ proceeding or related ~~actions. An indemnifying party who is not entitled to~~claims, actions or ~~elects not to~~proceedings in the same jurisdiction, ~~assume~~ be liable for the ~~defense of a claim shall not be obligated to pay the~~ reasonable fees and expenses of more than one ~~counsel~~ (1) separate firm of attorneys (in addition to any local counsel) at any time for all ~~parties indemnified by~~ such ~~indemnifying party with respect to~~ Indemnified Parties and that all such ~~claim, unless in the~~ reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses will be reimbursed as they are incurred. In the case of the retention of any such ~~additional counsel~~separate firm for the Indemnified Parties, ~~provided that~~ such firm will be designated in writing by the ~~indemnifying party shall~~ Indemnified Parties. The Indemnifying Party will not be liable for any settlement of any claim, action or proceeding effected without its written consent (which consent shall not be unreasonably withheld, conditioned or delayed), but if such claim, action or proceeding is settled with such consent or if there has been a final judgment for the ~~fees~~ plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and ~~expenses~~ against any Loss by reason of such settlement or judgment. No Indemnifying Party will, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any pending or threatened proceeding in respect of which any Indemnified Party is seeking indemnity hereunder, unless such settlement includes (i) ~~more than one counsel for~~ an unconditional release of such Indemnified Party from all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company)liability in connection with such proceeding, (ii) ~~more than one counsel for~~ no finding or admission of any violation of Law or any violation of the ~~underwriters in an Underwritten Offering~~ rights of any Person by the Indemnified Party or any of its Affiliates can be made as the result of such action and (iii) ~~more than one counsel for~~ the ~~Company,~~ sole relief (if any) provided is monetary damages that are reimbursed in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving full by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyIndemnifying Party. (d) If the indemnification ~~from the indemnifying party~~ provided for in this ~~Section 12~~ ‎Section 2.11 from the Indemnifying Party is unavailable to an ~~indemnified party~~ Indemnified Party hereunder or is insufficient in respect of any Losses referred to ~~any Losses~~in this ‎Section 2.11, then the ~~indemnifying party~~Indemnifying Party, in lieu of indemnifying such ~~indemnified party~~Indemnified Party, ~~shall~~ will contribute to the amount paid or payable by such ~~indemnified party~~ Indemnified Party as a result of such Losses (i) in such proportion as is appropriate to reflect the relative fault of the ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party in connection with the actions ~~which~~ that resulted in such Losses, as well as any other relevant equitable considerations~~; provided~~, ~~however~~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 fault referred to in clause (i) but also the relative benefit of Boron, on the one hand, and such Shareholder, on the other, in connection with the statements or omissions that ~~no Holder shall be required to contribute~~ resulted in such Losses, as well as any ~~amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement~~other relevant equitable considerations. The relative fault of such ~~indemnifying party~~ Indemnifying Party and ~~indemnified party shall~~ Indemnified Party will be determined by reference to, among other things, whether any action in question, including any untrue ~~statement~~ or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been ~~made~~ taken by, or relates to information supplied by, such ~~indemnifying party~~ Indemnifying Party or ~~indemnified party~~Indemnified Party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of the Losses referred to above ~~shall~~ will be deemed to include, subject to the limitations set forth in ~~Section 12(c~~‎Section 2.11(c), any reasonable legal or other out of pocket fees ~~and~~ or expenses reasonably incurred by such ~~indemnified~~ party in connection with any investigation or proceeding~~. No Person guilty of fraudulent misrepresentation~~ . (~~within the meaning of Section 11(f~~e) ~~of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.~~ The parties agree that it would not be just and equitable if contribution pursuant to ~~this Section 12(d~~‎Section 2.11(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the ~~consideration~~ equitable considerations referred to in ~~this Section 12(d~~‎Section 2.11(d). If No Person guilty of “fraudulent misrepresentation” (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In no event shall any Shareholder be obligated to provide indemnification ~~is available under this Section 12,~~ or contribution in excess of the ~~indemnifying parties shall indemnify each indemnified party~~ net aggregate proceeds received from the sale of Registrable Securities pursuant to the ~~full extent provided in Section 12(a)~~ applicable Registration Statement or ~~12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d)~~Prospectus. (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Merger Agreement (Banner Corp)

Indemnification; Contribution. (a) The Company ~~shall~~ agrees to indemnify and hold ~~harmless~~harmless Newbridge and its officers, ~~to the fullest extent permitted by law~~directors, ~~each Holder in any offering or sale of Registrable Securities~~shareholders, ~~each Person~~employees, ~~if any~~affiliates, ~~who participates as an underwriter in any offering and sale of Registrable Securities,~~ agents and each ~~Person, if any,~~ person who controls ~~such Holder or such underwriter~~ Newbridge (and any of its affiliates) within the meaning of Section 15 of the Securities Act of 1933, as amended or Section 20 of the Securities Exchange Act of 1934, as amended (each an “Indemnified Person”), to the fullest extent lawful, against any and ~~their respective directors~~all claims, ~~trustees, officers, partners, agents, employees and affiliates against all~~ losses~~, claims~~, damages, ~~liabilities~~ liabilities, and expenses (including ~~reasonable attorneys' fees,~~ all fees and disbursements of counsel and ~~expenses, as incurred, and any amounts paid~~ other expenses reasonably incurred in ~~any settlement effected~~ connection with the ~~Company's consent~~investigation of, preparation for and defense of any pending or threatened claim, action, proceeding, inquiry, investigation or litigation, to which ~~consent shall not be unreasonably withheld or delayed~~an Indemnified Person may become subject) (collectively, ~~"Losses"~~“Damages”) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i) any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions that arise out of or are ~~based upon (A~~re99999lated to any actual or proposed Corporate Advisory assignment or Newbridge ‘s engagement under this Agreement. However, this indemnification shall not include any Damages that are found in a final judgment by a court of competent jurisdiction to have resulted from the bad faith, willful misconduct or gross negligence of Newbridge. b) ~~any such untrue statement~~ If the indemnity above is unavailable or ~~alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect~~ insufficient to ~~such Holder furnished in writing to~~ hold harmless an Indemnified Person, then the Company shall contribute to amounts paid or payable by an Indemnified Person for Damages in such ~~Holder or its counsel expressly for use therein, (B)~~ proportion as appropriately reflects the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation relative benefits received by the Company on the one hand and Newbridge on the other. If applicable law does not permit allocation solely on the basis of benefits, then such contribution shall be made in such proportion as appropriately reflects both the relative benefits and relative fault of the parties and other relevant equitable considerations. However, in no event shall Newbridge‘s aggregate contributions for Damages exceed the amount of fees actually received by Newbridge under this Agreement. c) Promptly after receipt by Newbridge of notice of any ~~other federal~~ claim or ~~state securities laws~~ the commencement of any action for which an Indemnified Person may be entitled to indemnity, Newbridge shall promptly notify the Company of such claim or ~~regulations applicable~~ the commencement of such against the Indemnified Person that would give rise to indemnification. However, any delay or failure to notify the Company will not relieve the Company of its indemnity obligation except to the extent it is materially prejudiced by such delay or failure. The Company may participate in the defense of the claim and ~~relating to action required~~ shall assume the defense of ~~or inaction by~~ the claim and shall pay as incurred the fees and disbursements of counsel for the proceeding. In any proceeding where the Company ~~in connection with any~~ declines to assume the defense or the Company’s counsel is deemed to have a conflict of interest, the Indemnified Person shall have the right to retain its own counsel which shall be reasonably satisfactory to Newbridge. The Company shall pay the fees and expenses of such ~~registration~~counsel as incurred. ~~Notwithstanding the foregoing provisions of this Section 12(a)~~However, the Company shall not be ~~liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a)~~ responsible for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel (other than counsel of record) for all ~~parties indemnified by such indemnifying party with respect to such~~ Indemnified Persons. d) The Company will not enter into any waiver, release or settlement for any threatened or pending claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation ~~to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of~~ or settle any ~~judgment or entry into any settlement without the consent of each indemnifying party. (d) If the~~ related litigation for which indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall may be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or 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. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available sought under this ~~Section 12, the indemnifying parties shall indemnify each indemnified~~ Agreement (whether or not Indemnified Persons are a formal party to the ~~full extent provided in Section 12(a) or 12(b~~litigation), as unless the ~~case may be~~waiver, ~~without regard to the relative fault~~ release or settlement includes an unconditional release of ~~such indemnifying parties or indemnified party or~~ each Indemnified Person from any ~~other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section 12 shall be in addition to any~~ and all liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments arising out of the ~~amount thereof during the course of any~~ threatened or pending claim, action, ~~suit~~proceeding, ~~proceeding~~ investigation or ~~investigation, as and when invoices are received or Losses are incurred~~litigation.

Appears in 1 contract

Samples: Investment Banking Engagement Agreement (Ozop Surgical Corp.)

Indemnification; Contribution. (a) ~~The Company~~ ViroPharma shall indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each Holder in (including the employees, officers and directors of Aventis) from and against any ~~offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering~~ and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and affiliates against all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) ~~(collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation~~ arising out of or based ~~upon: (i)~~ upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular (as amended or supplemented if ViroPharma shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, except ~~in each case~~ insofar as ~~such statements~~ the same are caused by or ~~omissions arise out of or are based upon (A)~~ contained in any ~~such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with~~ information ~~with respect to~~ concerning such Holder furnished in writing to ~~the Company~~ ViroPharma by such Holder ~~or its counsel~~ expressly for use ~~therein, (B) the use of any Prospectus after~~ in such ~~time as the obligation of the Company to keep effective the~~ Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified partyStatement. (b) ~~In connection with any Registration Statement filed pursuant hereto, each~~ Each Holder ~~of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders,~~ shall indemnify and hold ~~harmless~~harmless ViroPharma, ~~to the fullest extent permitted~~ any underwriter retained by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, ViroPharma and their respective directors, ~~trustees,~~ officers~~, partners, agents~~, employees and ~~affiliates~~each Person who controls ViroPharma or such underwriter (within the meaning of the Securities Act and the Exchange Act) from and against any and all losses, ~~against all Losses incurred by such party pursuant to any actual action~~claims, ~~suit~~damages, ~~proceeding or investigation~~ liabilities and expenses (including reasonable costs of investigation) arising out of or based upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular (as amended or supplemented if ViroPharma shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, ~~but only to the extent that any~~ if such ~~untrue~~ statement or omission is was made in reliance on upon and in conformity with any information ~~with respect to~~ concerning such Holder furnished in writing to ~~the Company~~ ViroPharma by such Holder ~~or its counsel~~ specifically for use ~~therein~~in the preparation of such Registration Statement or prospectus; provided, however, that no the total amount to be indemnified by such -------- ------- Holder pursuant to this Section 7.5(b) shall be ~~required~~ limited to ~~indemnify~~ the ~~Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total~~ net proceeds received by ~~such Holder from sales of~~ the ~~Registrable Securities of such Holder under such~~ Holders in the offering to which the Registration ~~Statement~~Statement or prospectus relates. (c) ~~Any~~ Each Person entitled to indemnification hereunder (the "Indemnified Party") agrees to give prompt written notice to the indemnifying party (the "Indemnifying Party") after the receipt by ~~such indemnified party~~ the Indemnified Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which ~~such indemnified party may~~ the Indemnified Party intends to claim indemnification or contribution pursuant to this Agreement; provided, ~~provided~~ however, that the failure to ~~give such notification~~ so notify the Indemnifying Party shall -------- ------- not ~~affect~~ relieve the ~~obligations~~ Indemnifying Party of any liability that it may have to the ~~indemnifying party pursuant to this Section 12 except~~ Indemnified Party hereunder unless, and only to the extent that, such failure results in the ~~indemnifying party shall have been actually and materially prejudiced as a result~~ Indemnifying Party's forfeiture of ~~such failure~~substantive rights or defenses. ~~In case~~ If notice of commencement of any such action ~~shall be brought against any indemnified party and it shall notify~~ is given to the ~~indemnifying party of the commencement thereof~~Indemnifying Party as above provided, the ~~indemnifying party~~ Indemnifying Party shall be entitled to participate ~~therein~~ in and, to the extent ~~that~~ it ~~shall~~ may wish, jointly with any other ~~indemnifying party~~ Indemnifying Party similarly notified, to assume the defense ~~thereof~~of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such ~~indemnified party,~~ Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any such action and ~~after notice from the indemnifying party to such indemnified party of its election so to assume~~ participate in the defense thereof, but the ~~indemnifying party shall not be liable to such indemnified party for any legal~~ fees and expenses of ~~other~~ such 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, ) shall be paid by the Indemnified Party unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) ~~more than one~~ the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense of such action with counsel ~~for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be~~ reasonably satisfactory to the ~~Company), (ii) more than one counsel for the underwriters~~ Indemnified Party in ~~an Underwritten Offering~~ its reasonable judgment or (iii) the named parties to any such action (including any impleaded parties) have been advised by such counsel that either (x) representation of such Indemnified Party and the Indemnifying Party by the same counsel would be inappropriate under applicable standards of professional conduct or (y) there may be one or more ~~than one counsel for~~ legal defenses available to it which are different from or additional to those available to the ~~Company~~Indemnifying Party. In either of such cases, ~~in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is~~ the Indemnifying Party shall not ~~entitled to, or elects not to,~~ have the right to assume the defense of ~~a claim~~ such action on behalf of such Indemnified Party. No Indemnifying Party shall be liable for any settlement entered into without its written consent (other than in the case where the Indemnifying Party is unconditionally released from liability and its rights are not adversely effected), which consent shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyunreasonably withheld. (d) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 7.5 from the Indemnifying Party pursuant to applicable law is unavailable to an ~~indemnified party~~ Indemnified Party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to ~~any Losses~~therein, then the ~~indemnifying party~~Indemnifying Party, in lieu of indemnifying such ~~indemnified party~~Indemnified Party, shall contribute to the amount paid or payable by such ~~indemnified party~~ Indemnified Party as a result of such ~~Losses~~ losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party in connection with the actions which resulted in such ~~Losses~~losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative ~~fault~~ faults of such ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue ~~statement~~ or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such ~~indemnifying party~~ Indemnifying Party or ~~indemnified party~~Indemnified Party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the ~~Losses~~ losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in ~~Section 12(c~~Sections 7.5(a), (b) and (c), any legal or other ~~fees and~~ fees, charges or expenses reasonably incurred by such ~~indemnified~~ party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.5(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 in the immediately preceding paragraph. 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 parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d)Person. (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Stock Purchase Agreement (Viropharma Inc)

Indemnification; Contribution. (a) The Company ~~shall~~ agrees to indemnify and hold ~~harmless~~harmless Newbridge and its officers, ~~to the fullest extent permitted by law~~directors, ~~each Holder in any offering or sale of Registrable Securities~~shareholders, ~~each Person~~employees, ~~if any~~affiliates, ~~who participates as an underwriter in any offering and sale of Registrable Securities,~~ agents and each ~~Person, if any,~~ person who controls ~~such Holder or such underwriter~~ Newbridge (and any of its affiliates) within the meaning of Section 15 of the Securities Act of 1933, as amended or Section 20 of the Securities Exchange Act of 1934, as amended (each an “Indemnified Person”), to the fullest extent lawful, against any and ~~their respective directors~~all claims, ~~trustees, officers, partners, agents, employees and affiliates against all~~ losses~~, claims~~, damages, ~~liabilities~~ liabilities, and expenses (including ~~reasonable attorneys' fees,~~ all fees and disbursements of counsel and ~~expenses, as incurred, and any amounts paid~~ other expenses reasonably incurred in ~~any settlement effected~~ connection with the ~~Company's consent~~investigation of, preparation for and defense of any pending or threatened claim, action, proceeding, inquiry, investigation or litigation, to which ~~consent shall not be unreasonably withheld or delayed~~an Indemnified Person may become subject) (collectively, ~~"Losses"~~“Damages”) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i) any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions that arise out of or are ~~based upon~~ related to any actual or proposed Transaction or Financing or Newbridge ’s engagement under this Agreement. However, this indemnification shall not include any Damages that are found in a final judgment by a court of competent jurisdiction to have resulted from the bad faith, willful misconduct or gross negligence of Newbridge. (Ab) ~~any such untrue statement~~ If the indemnity above is unavailable or ~~alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect~~ insufficient to ~~such Holder furnished in writing to~~ hold harmless an Indemnified Person, then the Company shall contribute to amounts paid or payable by an Indemnified Person for Damages in such ~~Holder or its counsel expressly for use therein, (B)~~ proportion as appropriately reflects the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation relative benefits received by the Company on the one hand and Newbridge on the other. If applicable law does not permit allocation solely on the basis of ~~any~~ benefits, then such contribution shall be made in such proportion as appropriately reflects both the relative benefits and relative fault of the parties and other ~~federal or state securities laws or regulations applicable~~ relevant equitable considerations. However, in no event shall Newbridge’s aggregate contributions for Damages exceed the amount of fees actually received by Newbridge under this Agreement. The relative benefits to the Company and ~~relating~~ Newbridge of a Transaction or Financing shall be deemed to ~~action required of~~ be in the same proportion that the total value paid or ~~inaction~~ received or contemplated to be paid or received by the Company or its security holders in connection with the Transaction or Financing bears to the fees paid to Newbridge for the Transaction or Financing. (c) Promptly after receipt by Newbridge of notice of any claim or the commencement of any action for which an Indemnified Person may be entitled to indemnity, Newbridge shall promptly notify the Company of such ~~registration~~claim or the commencement of such against the Indemnified Person that would give rise to indemnification. ~~Notwithstanding~~ However, any delay or failure to notify the ~~foregoing provisions~~ Company will not relieve the Company of ~~this Section 12(a)~~its indemnity obligation except to the extent it is materially prejudiced by such delay or failure. The Company may participate in the defense of the claim and shall assume the defense of the claim and shall pay as incurred the fees and disbursements of counsel for the proceeding. In any proceeding where the Company declines to assume the defense or the Company’s counsel is deemed to have a conflict of interest, the Indemnified Person shall have the right to retain its own counsel which shall be reasonably satisfactory to Newbridge. The Company shall pay the fees and expenses of such counsel as incurred. However, the Company shall not be ~~liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a)~~ responsible for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel (other than counsel of record) for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyIndemnified Persons. (d) ~~If the indemnification from the indemnifying party provided~~ The Company will not enter into any waiver, release or settlement for ~~in this Section 12 is unavailable to an indemnified party hereunder in respect to~~ any ~~Losses~~threatened or pending claim, ~~then the indemnifying party~~action, ~~in lieu of indemnifying such indemnified party, shall contribute to the amount paid~~ proceeding or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or ~~proceeding. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall~~ settle any related litigation for which indemnification may be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available sought under this ~~Section 12, the indemnifying parties shall indemnify each indemnified~~ Agreement (whether or not Indemnified Persons are a formal party to the ~~full extent provided in Section 12(a) or 12(b~~litigation), as unless the ~~case may be~~waiver, ~~without regard to the relative fault~~ release or settlement includes an unconditional release of ~~such indemnifying parties or indemnified party or~~ each Indemnified Person from any ~~other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section 12 shall be in addition to any~~ and all liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments arising out of the ~~amount thereof during the course of any~~ threatened or pending claim, action, ~~suit~~proceeding, ~~proceeding~~ investigation or ~~investigation, as and when invoices are received or Losses are incurred~~litigation.

Appears in 1 contract

Samples: Investment Banking Engagement Agreement (PF Hospitality Group, Inc.)

Indemnification; Contribution. (a) ~~The Company~~ Amicus shall indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each Holder in any offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within (including the ~~meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners~~employees, agents, ~~employees~~ representatives, officers and ~~affiliates~~ directors of GSK and its Affiliates) (each a “GSK Indemnitee”) from and against any and all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) ~~(collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation~~ arising out of or based ~~upon: (i)~~ upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular prepared by Amicus in connection with the registration and/or offering of the Registrable Securities (as amended or supplemented if Amicus shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, except ~~in each case~~ insofar as ~~such statements~~ the same are caused by or ~~omissions arise out of or are based upon (A)~~ contained in any ~~such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with~~ information ~~with respect to~~ concerning such Holder furnished in writing to ~~the Company~~ Amicus by such Holder ~~or its counsel~~ expressly for use ~~therein, (B) the use of any Prospectus after~~ in such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified partydocument. (b) ~~In connection with any Registration Statement filed pursuant hereto, each~~ Each Holder ~~of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders,~~ shall indemnify and hold ~~harmless~~harmless Amicus, ~~to the fullest extent permitted by law~~and its respective directors, ~~the Company~~officers, ~~each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities~~ employees and each ~~Person, if any,~~ Person who controls ~~the Company or such underwriter~~ Amicus (within the meaning of ~~Section 15 of~~ the Securities Act ~~or Section 20 of~~ and the Exchange Act) from and against any and all losses, claims, damages, liabilities and ~~their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation~~ expenses (including reasonable costs of investigation) arising out of or based upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular prepared by Amicus in connection with the registration and/or offering of the Registrable Securities (as amended or supplemented if Amicus shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, ~~but only to the extent that any~~ if such ~~untrue~~ statement or omission is was made in reliance on upon and in conformity with any information ~~with respect to~~ concerning such Holder furnished in writing to ~~the Company~~ Amicus by such Holder ~~or its counsel~~ specifically for use ~~therein; provided, however, that no Holder shall be required to indemnify~~ in the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities preparation of such ~~Holder under such Registration Statement~~document. (c) ~~Any~~ Each Person entitled to indemnification hereunder (the “Indemnified Party”) agrees to give prompt written notice to the indemnifying party (the “Indemnifying Party”) after the receipt by ~~such indemnified party~~ the Indemnified Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which ~~such indemnified party may~~ the Indemnified Party intends ****** - Material has been omitted and filed separately with the Commission. to claim indemnification or contribution pursuant to this Agreement; provided, ~~provided~~ however, that the failure to ~~give such notification~~ so notify the Indemnifying Party shall not ~~affect~~ relieve the ~~obligations~~ Indemnifying Party of any liability that it may have to the ~~indemnifying party pursuant to this Section 12 except~~ Indemnified Party hereunder unless, and only to the extent that, such failure results in the ~~indemnifying party shall have been actually and materially prejudiced as a result~~ Indemnifying Party’s forfeiture of ~~such failure~~substantive rights or defenses. ~~In case~~ If notice of commencement of any such action ~~shall be brought against any indemnified party and it shall notify~~ is given to the ~~indemnifying party of the commencement thereof~~Indemnifying Party as above provided, the ~~indemnifying party~~ Indemnifying Party shall be entitled to participate ~~therein~~ in and, to the extent ~~that~~ it ~~shall~~ may wish, jointly with any other ~~indemnifying party~~ Indemnifying Party similarly notified, to assume the defense ~~thereof~~of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such ~~indemnified party,~~ Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any such action and ~~after notice from the indemnifying party to such indemnified party of its election so to assume~~ participate in the defense thereof, but the ~~indemnifying party shall not be liable to such indemnified party for any legal~~ fees and expenses of ~~other~~ such 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, ) shall be paid by the Indemnified Party unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) ~~more than one~~ the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense of such action with counsel ~~for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be~~ reasonably satisfactory to the ~~Company), (ii) more than one counsel for the underwriters~~ Indemnified Party in ~~an Underwritten Offering~~ its reasonable judgment or (iii) the named parties to any such action (including any impleaded parties) have been advised by such counsel that either (x) representation of such Indemnified Party and the Indemnifying Party by the same counsel would be inappropriate under applicable standards of professional conduct or (y) there may be one or more ~~than one counsel for~~ legal defenses available to it which are different from or additional to those available to the ~~Company~~Indemnifying Party. In either of such cases, ~~in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is~~ the Indemnifying Party shall not ~~entitled to, or elects not to,~~ have the right to assume the defense of ~~a claim~~ such action on behalf of such Indemnified Party. No Indemnifying Party shall be liable for any settlement entered into without its written consent (other than in the case where the Indemnifying Party is unconditionally released from liability and its rights are not adversely effected), which consent shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyunreasonably withheld. (d) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 7.5 from the Indemnifying Party pursuant to applicable law is unavailable to an ~~indemnified party~~ Indemnified Party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to ~~any Losses~~therein, then the ~~indemnifying party~~Indemnifying Party, in lieu of indemnifying such ~~indemnified party~~Indemnified Party, shall contribute to the amount paid or payable by such ~~indemnified party~~ Indemnified Party as a result of such ~~Losses~~ losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party in connection with the actions which resulted in such ~~Losses~~losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative ~~fault~~ faults of such ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue ~~statement~~ or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such ~~indemnifying party~~ Indemnifying Party or ~~indemnified party~~Indemnified Party, and the parties' ’ relative intent, ~~knowledge~~Knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the ~~Losses~~ losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in ~~Section 12(c~~Sections 7.5(a), (b) and (c), any legal or other ~~fees and~~ fees, charges or expenses reasonably incurred by such ~~indemnified~~ party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.5(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 in the immediately preceding paragraph. 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~~Person. ~~The parties agree that it would not be just~~ ****** - Material has been omitted and ~~equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account~~ filed separately with the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d)Commission. (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Stock Purchase Agreement (Amicus Therapeutics Inc)

Indemnification; Contribution. (a) ~~The Company~~ ViroPharma shall indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each Holder in from and against any ~~offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering~~ and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and affiliates against all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) ~~(collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation~~ arising out of or based ~~upon: (i)~~ upon any ~~untrue or alleged~~ untrue statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular (as amended or supplemented if ViroPharma shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, except ~~in each case~~ insofar as ~~such statements~~ the same are caused by or ~~omissions arise out of or are based upon (A)~~ contained in any ~~such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with~~ information ~~with respect to~~ concerning such Holder furnished in writing to ~~the Company~~ ViroPharma by such Holder ~~or its counsel~~ expressly for use ~~therein, (B) the use of any Prospectus after~~ in such ~~time as the obligation of the Company to keep effective the~~ Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified partyStatement. (b) In connection with any Registration Statement ~~filed~~ in which a Holder is participating pursuant ~~hereto~~to Section 8 hereof, each such Holder ~~of Registrable Securities~~ shall furnish to ViroPharma in writing such information with respect to such Holder as ViroPharma may reasonably request or as may be ~~covered thereby shall, severally and not jointly~~ required by law specifically for use in connection with any ~~other Holders,~~ such Registration Statement or prospectus. Each Holder shall indemnify and hold ~~harmless~~harmless ViroPharma, ~~to the fullest extent permitted~~ any underwriter retained by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, ViroPharma and their respective directors, ~~trustees,~~ officers~~, partners, agents~~, employees and ~~affiliates~~each Person who controls ViroPharma or such underwriter (within the meaning of the Securities Act and the Exchange Act) from and against any and all losses, ~~against all Losses incurred by such party pursuant to any actual action~~claims, ~~suit~~damages, ~~proceeding or investigation~~ liabilities and expenses (including reasonable costs of investigation) arising out of or based upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular (as amended or supplemented if ViroPharma shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, ~~but only to the extent that any~~ if such ~~untrue~~ statement or omission is was made in reliance on upon and in conformity with any information ~~with respect to~~ concerning such Holder furnished in writing to ~~the Company~~ ViroPharma by such Holder ~~or its counsel~~ specifically for use ~~therein~~in the preparation of such Registration Statement or prospectus; provided, however, -------- ------- that no the total amount to be indemnified by such Holder pursuant to this Section 8.6(b) shall be ~~required~~ limited to ~~indemnify~~ the ~~Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total~~ net proceeds received by ~~such Holder from sales of~~ the ~~Registrable Securities of such Holder under such~~ Holders in the offering to which the Registration ~~Statement~~Statement or prospectus relates. (c) Any Person entitled to indemnification hereunder (the "Indemnified Party") agrees to give prompt written notice to the indemnifying party (the "Indemnifying Party") after the receipt by ~~such indemnified party~~ the Indemnified Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which ~~such indemnified party may~~ the Indemnified Party intends to claim indemnification or contribution pursuant to this Agreement; provided, ~~provided~~ however, that the failure so to ~~give such notification~~ notify the Indemnifying Party shall -------- ------- not ~~affect~~ relieve the ~~obligations~~ Indemnifying Party of any liability that it may have to the ~~indemnifying party pursuant to this Section 12 except~~ Indemnified Party hereunder unless, and only to the extent that, such failure results in the ~~indemnifying party shall have been actually and materially prejudiced as a result~~ Indemnifying Party's forfeiture of ~~such failure~~substantive rights or defenses. ~~In case~~ If notice of commencement of any such action ~~shall be brought against any indemnified party and it shall notify~~ is given to the ~~indemnifying party of the commencement thereof~~Indemnifying Party as above provided, the ~~indemnifying party~~ Indemnifying Party shall be entitled to participate ~~therein~~ in and, to the extent ~~that~~ it ~~shall~~ may wish, jointly with any other ~~indemnifying party~~ Indemnifying Party similarly notified, to assume the defense ~~thereof~~of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such ~~indemnified party,~~ Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any such action and ~~after notice from the indemnifying party to such indemnified party of its election so to assume~~ participate in the defense thereof, but the ~~indemnifying party shall not be liable to such indemnified party for any legal~~ fees and expenses of ~~other~~ such 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, ) shall be paid by the Indemnified Party unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) ~~more than one~~ the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense of such action with counsel ~~for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be~~ reasonably satisfactory to the ~~Company), (ii) more than one counsel for the underwriters~~ Indemnified Party in ~~an Underwritten Offering~~ its reasonable judgment or (iii) the named parties to any such action (including any impleaded parties) have been advised by such counsel that either (x) representation of such Indemnified Party and the Indemnifying Party by the same counsel would be inappropriate under applicable standards of professional conduct or (y) there may be one or more ~~than one counsel for~~ legal defenses available to it which are different from or additional to those available to the ~~Company~~Indemnifying Party. In either of such cases, ~~in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is~~ the Indemnifying Party shall not ~~entitled to, or elects not to,~~ have the right to assume the defense of ~~a claim~~ such action on behalf of such Indemnified Party. No Indemnifying Party shall be liable for any settlement entered into without its written consent (other than in the case where the Indemnified Party is unconditionally released from liability and its rights are not adversely effected), which consent shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyunreasonably withheld. (d) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 8.6 from the Indemnifying Party pursuant to applicable law is unavailable to an ~~indemnified party~~ Indemnified Party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to ~~any Losses~~therein, then the ~~indemnifying party~~Indemnifying Party, in lieu of indemnifying such ~~indemnified party~~Indemnified Party, shall contribute to the amount paid or payable by such ~~indemnified party~~ Indemnified Party as a result of such ~~Losses~~ losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party in connection with the actions which resulted in such ~~Losses~~losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative ~~fault~~ faults of such ~~indemnifying party~~ Indemnifying Party and ~~indemnified party~~ Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue ~~statement~~ or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such ~~indemnifying party~~ Indemnifying Party or ~~indemnified party~~Indemnified Party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the ~~Losses~~ losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in ~~Section 12(c~~Sections 8.6(a), (b) and (c), any legal or other ~~fees and~~ fees, charges or expenses reasonably incurred by such ~~indemnified~~ party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8.6(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 in the immediately preceding paragraph. 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 parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d)Person. (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Stock Purchase Agreement (Viropharma Inc)

Indemnification; Contribution. (ai) ~~The Company~~ Infinity shall indemnify and hold harmless, to the fullest extent permitted by law, each ~~Holder in any offering or sale~~ holder (a "Participating Holder") of Registrable ~~Securities~~Securities registered pursuant to Section 2(a) or Section 2(b) hereof, ~~each Person~~its officers and directors, if any, ~~who participates as an underwriter in any offering and sale of Registrable Securities,~~ and each ~~Person~~person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and affiliates against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i) any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and ~~their respective directors, trustees, officers, partners, agents, employees and affiliates,~~ against all ~~Losses incurred by such party pursuant to any actual action~~losses, ~~suit~~claims, ~~proceeding~~ damages, liabilities (or proceedings in respect thereof) and expenses (including the reasonable costs of investigation ~~arising~~ and reasonable attorneys' fees, disbursements and related charges) (under the Securities Act, common law and otherwise) (collectively, "Claims"), joint or several, which arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (~~in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing~~A) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact contained in any registration statement, prospectus, preliminary prospectus, any amendment or supplement thereto or any document incorporated by reference or in any filing made in connection with the registration or qualification of the offering under "blue sky" or other securities laws of jurisdictions in which the Participating Holder's Registrable Securities are offered (collectively, "Security Filings"), or any omission or alleged omission to state therein a material ~~fact~~fact required to be stated therein or necessary to make the statements therein not misleading, and (B) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, if used prior to the effective date of such registration statement (unless such statement is corrected in the final prospectus and Infinity has ~~been made by~~previously furnished copies thereof to any Participating Holder seeking such indemnification and to the underwriters of the registration in question), or contained in the final prospectus (as amended or supplemented if Infinity shall have filed with the Commission any amendment thereof or supplement thereto) if used within the period during which Infinity is required to keep the registration statement to which such prospectus relates current, or the omission or alleged omission to ~~information supplied by~~state therein a material fact necessary in order to make the statements therein, ~~such indemnifying party or indemnified party~~in light of the circumstances under which they were made, not misleading; and Infinity shall, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or 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. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.hereby agrees to,

Appears in 1 contract

Samples: Registration Rights Agreement (Outdoor Systems Inc)

Appears in 1 contract

Samples: Registration Rights Agreement (Rohm & Haas Co)

Indemnification; Contribution. (a) The Company ~~shall~~ agrees to indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each Holder ~~in any offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities,~~ and each ~~Person~~person, if any, who controls ~~such~~ any Holder ~~or such underwriter~~ within the meaning of either Section 15 of the ~~Securities~~ Act or Section 20 of the Exchange Act from and ~~their respective directors, trustees, officers, partners, agents, employees~~ against any and ~~affiliates against~~ all losses, claims, ~~damages~~damages and liabilities (including, ~~liabilities and~~ without limitation, any legal or other expenses ~~(including reasonable attorneys' fees, disbursements and expenses, as incurred, and~~ reasonably incurred in connection with defending or investigating any ~~amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld~~ such action or ~~delayed~~claim) ~~(collectively, "Losses") incurred~~ caused by ~~such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon:~~ (i) any untrue statement or alleged untrue statement of a material fact contained inin any Registration Statement or any amendment thereof, including all documents incorporated therein by reference, or ~~any~~ the omission or alleged omission therefrom of a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein not misleading or (~~in the case~~ ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary Prospectus or any Prospectus (or amendment or supplement thereto) or the omission or alleged omission therefrom of a ~~preliminary Prospectus~~material fact necessary in order to make the statements therein, in the light of the circumstances ~~then existing)~~ under which they were made, not misleading, ; except ~~in each case~~ insofar as such ~~statements~~ losses, claims, damages or ~~omissions arise out of or~~ liabilities are ~~based upon (A)~~ caused by any such untrue statement or omission or alleged untrue statement or omission ~~or alleged omission made in reliance on and in conformity with~~ based upon information ~~with respect~~ relating to ~~such~~ any Holder furnished ~~in writing~~ to the Company in writing by such Holder ~~or its counsel~~ expressly for use therein~~, (B)~~ . The Company shall also indemnify each Exchanging Dealer participating in the ~~use of any Prospectus after such time as the obligation~~ offering and sale of the ~~Company~~ Notes and each person who controls any such Exchanging Dealer (within the meaning of Section 15 of the Act or Section 20 of the Exchange Act) to ~~keep effective~~ the ~~Registration Statement~~ same extent and with the same limitations as provided above with respect to the indemnification of ~~which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised~~ the Holders ~~that~~ of the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registrationNotes. ~~Notwithstanding the~~ The foregoing ~~provisions of this Section 12(a)~~notwithstanding, the Company shall not be liable to ~~any~~ the extent that such ~~Holder~~ losses, claims, damages or ~~underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that~~ liabilities arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus that is a preliminary Prospectus if ~~either~~ (i) ~~(A)~~ such ~~Holder or underwriter~~ indemnified person failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of ~~Registrable Securities by~~ the Notes giving rise to such ~~Holder~~ losses, claims, damages or ~~underwriter to the Person asserting the claim from which such Losses arise~~ liabilities and (Bii) the Prospectus would have corrected such untrue statement or ~~alleged untrue statement or such omission or alleged~~ omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) ~~In connection with any Registration Statement filed pursuant hereto, each~~ Each Holder ~~of Registrable Securities to be covered thereby shall~~agrees, severally and not ~~jointly with any other Holders~~jointly, to indemnify and hold ~~harmless, to~~ harmless the ~~fullest extent permitted by law~~Company, the Company's directors, ~~each Person~~the Company's officers who sign a Registration Statement, ~~if any, who participates as an underwriter in any offering and sale of Registrable Securities~~ and each ~~Person~~person, if any, who controls the Company ~~or such underwriter~~ within the meaning of either Section 15 of the ~~Securities~~ Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or any amendment thereof, any preliminary Prospectus or any Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Holder furnished to the Company in writing by such Holder expressly for use in such Registration Statement, preliminary Prospectus, Prospectus or any amendments or supplements thereto. In no event shall the liability of any Holder of the Notes hereunder be greater in amount than the net dollar amount of the proceeds received by such Holder from the sale of the Notes giving rise to such indemnification obligation. (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 either of the two preceding paragraphs, such person (the "indemnified party") shall promptly notify the person against whom such ------------------ indemnity may be sought (the "indemnifying party") in writing and the ------------------ indemnifying party, upon request of the indemnified party, shall 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 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. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (a) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Holders and all persons, if any, who control any Holders within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (~~in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing~~b) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one ~~counsel~~ separate firm (in addition to any local counsel) for the Company and each person, if any, who controls the Company within the meaning of either such Section, and that all ~~parties indemnified by~~ such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses shall be reimbursed as they are incurred. In the case of any such ~~additional counsel~~separate firm for the Company and any such control persons of the Company, ~~provided that~~ such firm shall be designated in writing by the Company. In the case of any such separate firm for the Holders or any such control persons of any Holders, such firm shall be designated in writing on behalf of the Majority Holders. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, 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 ~~one counsel for all Holders of Registrable Securities who are indemnified parties, selected~~ 30 days after receipt by ~~the Holders of a Majority~~ such indemnifying party of the ~~Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company),~~ aforesaid request and (ii) ~~more than one counsel for~~ such indemnifying party shall not have reimbursed the ~~underwriters~~ indemnified party in ~~an Underwritten Offering or (iii) more than one counsel for~~ accordance with such request prior to the ~~Company, in each case in connection with any one action or separate but similar or related actions~~date of such settlement. No indemnifying ~~party, in defense of any such action, suit, proceeding or investigation,~~ party shall, ~~except with~~ without the prior written consent of ~~each~~ the indemnified party, ~~consent to the entry~~ effect any settlement of any ~~judgment~~ pending or ~~entry into~~ threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement ~~which does not include as~~ includes an unconditional ~~term thereof the giving by the claimant or plaintiff to~~ release of such indemnified party ~~of a release~~ from all liability ~~in respect to~~ on claims that are the subject matter of such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyproceeding. (d) If To the extent the indemnification ~~from the indemnifying party~~ provided for in paragraph (a) or (b) of this Section 12 6 is unavailable to an indemnified party ~~hereunder~~ or insufficient in respect of any losses, claims, damages or liabilities referred to ~~any Losses~~herein, then ~~the~~ each indemnifying ~~party, in lieu of indemnifying such indemnified party,~~ party shall contribute to the amount paid or payable by such indemnified party as a result of such ~~Losses~~ losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party in connection with the ~~actions~~ statements or omissions which resulted in such ~~Losses~~losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether ~~any action in question, including any~~ the untrue ~~statement~~ or alleged untrue statement of a material fact or omission or alleged omission to state a material ~~fact, has been made by, or~~ fact relates to information supplied ~~by,~~ by such indemnifying party or by such indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such ~~action~~statement or omission. The ~~amount paid or payable by a party as a result~~ Holders' respective obligations to contribute pursuant to this paragraph are several in proportion to the respective number of the ~~Losses referred~~ Notes they have sold pursuant to ~~above shall be deemed to include~~a Registration Statement, ~~subject to~~ and not joint. (e) The Company and the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or 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. The parties Holders agree that it would not be just ~~and~~ or equitable if contribution pursuant to ~~this~~ Section ~~12(d~~6(d) were determined by pro rata allocation or by any other method of allocation that does not take ~~into~~ account of the ~~consideration~~ equitable considerations referred to in paragraph (d) of this Section ~~12(d)~~6. ~~If indemnification is available under~~ The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities referred to in paragraph (d) of this Section 126 shall be deemed to include, subject to the ~~indemnifying parties shall indemnify each~~ limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 6, a Holder of the Notes shall not be required to contribute any amount in excess of the amount by which the total price at which the Notes sold by such indemnifying party and distributed to the ~~full extent provided in Section 12(a) or 12(b), as the case may be, without regard~~ public were offered to the ~~relative fault~~ public pursuant to any Registration Statement exceeds the amount of any damages which such indemnifying party has otherwise been required to pay by reason of such ~~indemnifying parties~~ untrue or ~~indemnified party~~ alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any ~~other equitable consideration~~ person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section ~~12(d). (e) The provisions of this Section 12~~ 6 are not exclusive and shall not limit any rights or remedies which may otherwise be ~~in addition to any liability which any indemnifying party may have~~ available to any indemnified party ~~and shall survive the termination of this Agreement~~at law or in equity. (f) The ~~indemnification~~ indemnity and contribution ~~required by~~ provisions contained in this Section 12 6 shall be remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by ~~periodic payments of the amount thereof during the course~~ or on behalf of any ~~action~~Holder or any person controlling any Holder, ~~suit, proceeding~~ or ~~investigation, as~~ the Company or any person controlling the Company and ~~when invoices are received or Losses are incurred~~(iii) the sale of any Notes by any Holder.

Appears in 1 contract

Samples: Registration Rights Agreement (McKesson Corp)

Indemnification; Contribution. (a) Indemnification by the Company. The Company ~~shall~~ agrees to indemnify ------------------------------- and hold ~~harmless~~harmless each Designated Holder, ~~to the fullest extent permitted by law~~its partners, ~~each Holder in any offering or sale of Registrable Securities~~directors, ~~each Person~~officers, ~~if any, who participates as an underwriter in any offering and sale of Registrable Securities,~~ affiliates and each ~~Person, if any,~~ Person who controls ~~such Holder or such underwriter~~ (within the meaning of Section 15 of the Securities ~~Act or Section 20 of the Exchange Act~~ Act) such Designated Holder from and ~~their respective directors, trustees, officers, partners, agents, employees~~ against any and ~~affiliates against~~ all losses, claims, damages, liabilities and expenses (including reasonable ~~attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~costs of investigation) (each, a "Liability and collectively, "~~Losses~~Liabilities"~~) incurred by such party pursuant to any actual or threatened action~~), ~~suit, proceeding or investigation~~ arising out of or based ~~upon: (i)~~ upon any ~~untrue~~ untrue, or ~~alleged untrue~~ allegedly untrue, statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus or notification or offering circular (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of~~ not misleading under the circumstances ~~then existing) not misleading~~such statements were made, except ~~in each case~~ insofar as such ~~statements or omissions arise~~ Liability arises out of or ~~are~~ is based upon ~~(A)~~ any ~~such~~ untrue statement or alleged untrue statement or omission or alleged omission ~~made~~ contained in such Registration Statement, preliminary prospectus or final prospectus in reliance on and in conformity with information ~~with respect to~~ concerning such Designated Holder furnished in writing to the Company by such Designated Holder ~~or its counsel~~ expressly for use therein, ~~(B)~~ including, without limitation, the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable information furnished to the Company ~~and relating~~ pursuant to ~~action required of or inaction by the Company in connection with any such registration~~Section 7(b). ~~Notwithstanding the foregoing provisions of this Section 12(a), the~~ The Company shall ~~not be liable~~ also provide customary indemnities to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer underwriters of the Registrable ~~Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto~~Securities, ~~each Holder of Registrable Securities to be covered thereby shall~~their officers, ~~severally~~ directors and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities employees and each ~~Person, if any,~~ Person who controls ~~the Company or~~ such ~~underwriter~~ underwriters (within the meaning of Section 15 of the Securities ~~Act or Section 20 of the Exchange~~ Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) ~~not misleading, but only~~ to the same extent ~~that any such untrue statement or omission is made in reliance on and in conformity with information~~ as provided above with respect to ~~such Holder furnished in writing to~~ the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess indemnification of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Designated Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partySecurities. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or 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. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Registration Rights Agreement (Egain Communications Corp)

Indemnification; Contribution. (a) The Company ~~shall~~ will indemnify and hold ~~harmless~~harmless the Remarketing Dealer against any losses, claims, damages or liabilities, joint or several, to which the ~~fullest extent permitted by law~~Remarketing Dealer may become subject, each Holder in any offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of under the Securities Act or ~~Section 20 of the Exchange Act and their respective directors~~otherwise, ~~trustees, officers, partners, agents, employees and affiliates against all~~ insofar as such losses, claims, ~~damages,~~ damages or liabilities ~~and expenses~~ (~~including reasonable attorneys' fees, disbursements and expenses, as incurred, and any amounts paid~~ or actions in ~~any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~respect thereof) ~~(collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising~~ arise out of or are based ~~upon: (i) any~~ upon an untrue statement or alleged untrue statement of a material fact contained inin the Registration Statement, the Prospectus, the Prospectus Supplement, the related preliminary Prospectus Supplement, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein ~~(in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing)~~ not misleading, ~~except in each case insofar as such statements~~ and will reimburse the Remarketing Dealer for any legal or omissions arise out of or are based upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation other expenses reasonably incurred by the ~~Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company~~ Remarketing Dealer in connection with investigating or defending any such ~~registration. Notwithstanding the foregoing provisions of this Section 12(a)~~action or claim as such expenses are incurred; provided, however, that the Company shall not be liable to in any such ~~Holder~~ case to the extent that any such loss, claim, damage or ~~underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise~~ liability arises out of or ~~are~~ is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Prospectus, the Prospectus Supplement, the related preliminary Prospectus Supplement, or any ~~Prospectus if either~~ such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by the Remarketing Dealer expressly for use therein; and provided, further, that the Company shall not be liable to the Remarketing Dealer under the indemnity agreement in this subsection (ia) ~~(A)~~ with respect to any preliminary prospectus to the extent that any such ~~Holder~~ loss, claim, damage or ~~underwriter failed~~ liability of the Remarketing Dealer results from the fact that the Remarketing Dealer sold MAPS to ~~send~~ a person as to whom it shall 13 13 be established that there was not sent or ~~deliver~~ given, at or prior to the written confirmation of such sale, a copy of the Prospectus ~~with~~ (excluding documents incorporated by reference) or ~~prior~~ of the Prospectus as then amended or supplemented (excluding documents incorporated by reference) in any case where such delivery is required by the Securities Act if the Company has previously furnished copies thereof to the ~~delivery of written confirmation~~ Remarketing Dealer and the loss, claim, damage or liability of the ~~sale~~ Remarketing Dealer results from an untrue statement or omission of ~~Registrable Securities by such Holder or underwriter to~~ a material fact contained in the ~~Person asserting the claim from~~ preliminary prospectus which ~~such Losses arise and (B)~~ was corrected in the Prospectus ~~would have corrected~~ (excluding documents incorporated by reference) or in the Prospectus as then amended or supplemented (excluding documents incorporated by reference). (b) The Remarketing Dealer will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Prospectus, the Prospectus Supplement, the related preliminary Prospectus Supplement, or ~~such~~ any amendment or supplement thereto, or arise out of or are based upon the omission or alleged ~~omission~~omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, ~~or (ii) (x)~~ in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission ~~is corrected~~ was made in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, the Prospectus, the Prospectus or Supplement, the related preliminary Prospectus Supplement, or any such amendment or ~~supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus~~supplement, in ~~the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in~~ reliance on upon and in conformity with written information ~~with respect to such Holder~~ furnished ~~in writing~~ to the Company by ~~such Holder or its counsel specifically~~ the Remarketing Dealer expressly for use therein; ~~provided, however, that no Holder shall be required to indemnify~~ and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any ~~other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by~~ such ~~Holder from sales of the Registrable Securities of~~ action or claim as such ~~Holder under such Registration Statement~~expenses are incurred. (c) ~~Any Person~~ Promptly after receipt by a party entitled to indemnification ~~hereunder agrees to give prompt written notice to~~ under subsection (a) or (b) above (the ~~indemnifying party after the receipt by such~~ "indemnified ~~party~~ party") of ~~any written~~ notice of the commencement of any action, ~~suit, proceeding or investigation or threat thereof made in writing for which~~ such indemnified party ~~may~~ shall, if a claim in respect thereof is to be made against a party required to provide indemnification ~~or contribution pursuant~~ to ~~this Agreement~~such indemnified party under such subsection (the "indemnifying party"), ~~provided that failure to give such notification shall not affect the obligations of~~ notify the indemnifying party ~~pursuant~~ in writing of the commencement thereof; but the omission so to ~~this Section 12 except to the extent~~ notify the indemnifying party shall not relieve it from any liability which it may have ~~been actually and materially prejudiced as a result of~~ to any indemnified party otherwise than under such ~~failure~~subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel ~~reasonably~~ satisfactory to such indemnified party (which shall not, except with the consent of the indemnified party, ~~and~~ be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection 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~~, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the~~ . In no event shall an indemnifying party ~~and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not~~ be liable for the fees and expenses of ~~(i)~~ more than one counsel (in addition to any local counsel), apart from counsel to such indemnifying party, for all ~~Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are~~ indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related ~~actions~~actions arising out of the same general allegations or circumstances. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the No indemnifying party shall be ~~obligated to pay the fees and expenses~~ liable for any settlement of any such ~~additional counsel~~action effected without its consent, provided that ~~the indemnifying party shall~~ such consent is not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering unreasonably withheld or ~~(iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions~~delayed. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party.14 14 (d) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 10 is unavailable to or insufficient to hold harmless an indemnified party ~~hereunder~~ under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to ~~any Losses~~therein, then ~~the~~ each indemnifying ~~party, in lieu of indemnifying such indemnified party,~~ party shall contribute to the amount paid or payable by such indemnified party as a result of such ~~Losses~~ losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Remarketing Dealer on the other from the offering of the MAPS. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the ~~indemnifying party~~ Company on the one hand and ~~indemnified party~~ the Remarketing Dealer on the other in connection with the ~~actions~~ statements or omissions which resulted in such ~~Losses~~losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations~~; provided, however, that no Holder~~ . The relative benefits received by the Company on the one hand and the Remarketing Dealer on the other shall be ~~required~~ deemed to ~~contribute any amount~~ be in ~~excess of~~ the ~~amount of~~ same proportion as the total net proceeds from the offering of the MAPS purchased under the Underwriting Agreement (before deducting expenses and as set forth in the table on the cover page of the Prospectus Supplement) received by ~~such Holder from sales of~~ the ~~Registrable Securities of~~ Company on the ~~Holder under~~ one hand bear to the ~~applicable Registration Statement~~aggregate positive difference, if any, between the price paid by the Remarketing Dealer for the MAPS tendered on the Remarketing Date and the price at which the MAPS are sold by the Remarketing Dealer in the remarketing. The relative fault ~~of such indemnifying party and indemnified party~~ shall be determined by reference to, among other things, whether ~~any action in question, including any~~ the untrue ~~statement~~ or alleged untrue statement of a material fact or the omission or alleged omission to state a material ~~fact, has been made by, or~~ fact relates to information supplied ~~by, such indemnifying party~~ by the Company on the one hand or ~~indemnified party,~~ the Remarketing Dealer on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such ~~action~~statement or omission. The Company and the Remarketing Dealer agree that it would not be just and equitable if contributions pursuant to this subsection (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 subsection (d). The amount paid or payable by a an indemnified party as a result of the ~~Losses~~ losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to ~~include, subject to the limitations set forth in Section 12(c),~~ include any legal or other ~~fees and~~ expenses reasonably incurred by such indemnified party in connection with investigating or defending any ~~investigation~~ such action or ~~proceeding~~claim. Notwithstanding the provisions of this subsection (d), (i) the Remarketing Dealer shall not be required to contribute any amount in excess of the amount by which the total price at which the MAPS remarketed by it and distributed to the public were offered to the public exceeds the amount of any damages which the Remarketing Dealer has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No ~~Person~~ person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~Person~~ person who was not guilty of such fraudulent misrepresentation. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d). (e) The ~~provisions~~ obligations of the Company under this Section 12 10 shall be in addition to any liability which ~~any indemnifying party~~ the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls the Remarketing Dealer within the meaning of the Securities Act; and the obligations of the Remarketing Dealer under this Section 10 shall be in addition to any ~~indemnified party~~ liability which the Remarketing Dealer may otherwise have and shall ~~survive~~ extend, upon the ~~termination of this Agreement. (f) The indemnification~~ same terms and ~~contribution required by this Section 12 shall be made by periodic payments~~ conditions, to each officer and director of the ~~amount thereof during~~ Company and to each person, if any, who controls the ~~course~~ Company within the meaning of ~~any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.~~the Securities Act. 15 15

Appears in 1 contract

Samples: Remarketing Agreement (Union Texas Petroleum Holdings Inc)

Indemnification; Contribution. (a) The Company shall indemnify and hold ~~harmless~~harmless each Holder, ~~to the fullest extent permitted by law, each Holder in any offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering~~ its respective officers and ~~sale of Registrable Securities~~directors, and each Person, if any, who controls such Holder ~~or such underwriter~~ within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and ~~their respective directors, trustees, officers, partners,~~ any agents, ~~employees and affiliates~~ representatives or advisers thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' ~~fees, disbursements~~ fees and ~~expenses, as incurred,~~ expenses and ~~any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, "Losses"~~reasonable costs of investigation) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based ~~upon:~~ upon (i) any untrue or alleged untrue statement of a material fact contained ~~in, or~~ in any ~~omission or alleged omission of a material fact required to be stated in, the~~ Registration Statement, any Prospectus or preliminary ~~Prospectus~~ Prospectus, or any amendment or supplement to any of the ~~foregoing~~ foregoing, (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in ~~the~~ light of the circumstances then existing) not misleading, ~~except in each case insofar as such statements~~ or ~~omissions arise out of or are based upon~~ (Aiii) any ~~such untrue statement~~ violation or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any ~~other federal~~ United States federal, state or ~~state securities laws~~ common law rule or ~~regulations~~ regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such ~~registration. Notwithstanding~~ registration except in each case insofar as the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that same arise out of or are based ~~upon an untrue statement or alleged~~ upon, any such untrue statement or omission ~~or alleged omission~~ made in ~~any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus~~ reliance on and in conformity with ~~or prior~~ written information with respect to the ~~delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter~~ Holders furnished in writing to the ~~Person asserting~~ Company by the ~~claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement~~ Holders or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arisetheir counsel expressly for use therein. ~~Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b)~~ In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by lawan Underwritten Offering, the ~~Company~~Company shall indemnify the underwriters thereof, ~~each Person~~their officers, ~~if any, who participates as an underwriter in any offering~~ directors and ~~sale of Registrable Securities~~ agents and each ~~Person, if any,~~ Person who controls ~~the Company or~~ such ~~underwriter~~ underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) ~~not misleading, but only~~ to the same extent ~~that any such untrue statement or omission is made in reliance on and in conformity with information~~ as provided above with respect to ~~such Holder furnished in writing to~~ the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess indemnification of the ~~amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement~~Holders. (cb) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this ~~Agreement,~~ Section 13 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 13 except to the extent the indemnifying party shall have been ~~actually and~~ materially prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 13 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event if (i) the indemnifying party shall not ~~be liable for the fees and expenses of (i) more than one~~ have employed counsel ~~for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be~~ reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying such indemnified party ~~who is not entitled to, or elects not to, assume~~ to take charge of the defense of such action within a ~~claim shall~~ reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not ~~be obligated to pay~~ the ~~fees and expenses~~ result of ~~more than one counsel for all parties indemnified~~ an unreasonable determination by such ~~indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an~~ indemnified party ~~and any other of such indemnified parties with respect~~ that counsel selected pursuant to ~~such claim, in which event~~ the ~~indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that~~ immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not ~~be liable for~~ have demonstrated to the ~~fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority~~ reasonable satisfaction of the ~~Registrable Securities who are~~ indemnified ~~parties (which selection shall be reasonably satisfactory~~ party its ability to ~~the Company)~~finance such defense, or (ii) ~~more than one~~ the indemnified party shall have reasonably concluded or been advised by counsel that there may be legal defenses available to other indemnified parties to such action which could result in a conflict of interest for such counsel or prejudice the ~~underwriters in an Underwritten Offering or (iii) more than one~~ prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel ~~for~~ of its choosing, at the ~~Company, in each case in connection with any one action or separate but similar or related actions~~expense of the indemnifying party. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or ~~entry~~ enter into any settlement without the consent (which consent, in the case of ~~each indemnifying~~ an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of the applicable indemnified party. (dc) If the indemnification from the indemnifying party provided for in this Section 12 13 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to ~~any Losses~~therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such ~~Losses~~ losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions or omissions which resulted in such ~~Losses~~losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue ~~statement~~ or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied (in writing, in the case of the Holders) by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such ~~action~~action or omission. The amount paid or payable by a party as a result of the ~~Losses~~ losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section ~~12(c)~~13(b) hereof, any legal or and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 13(c) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 13(c). Any underwriter's obligations in this Section 13(c) to contribute shall be several in proportion to the number of Registrable Securities underwritten by them and not joint. Notwithstanding the provisions of this Section 13(c), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. 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 parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 1213, the indemnifying parties shall indemnify each indemnified party to the ~~full~~ fullest extent provided in Section ~~12(a~~13(a) ~~or 12(b), as the case may be,~~ hereof without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section ~~12(d~~13(c). (ed) The provisions of this Section 12 13 shall be in addition to any liability which any ~~indemnifying~~ party may have to any ~~indemnified~~ other party and shall survive ~~the~~ any termination of this Agreement~~. (f)~~ . The indemnification ~~and contribution required~~ provided by this Section 12 13 shall be survive the Transfer of such Registrable Securities by the Holders and shall remain in full force and effect irrespective of any investigation made by ~~periodic payments~~ or on behalf of ~~the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred~~an indemnified party.

Appears in 1 contract

Samples: Credit Agreement (Cadiz Inc)

Indemnification; Contribution. (a) Indemnification by the Company. The Company ~~shall indemnify~~ agrees to indemnify, protect and hold harmless, to the ~~fullest~~ full extent permitted by law, ~~each Holder in~~ the Selling Stockholders, its officers, directors, partners, employees and agents, and any ~~offering~~ agent or ~~sale~~ investment adviser of ~~Registrable Securities, each Person, if any, who participates as an underwriter in~~ any ~~offering and sale of Registrable Securities~~thereof, and each ~~Person, if any,~~ Person who controls any such ~~Holder or such underwriter~~ Person (within the meaning of ~~Section 15 of~~ the ~~Securities Act or Section 20 of the Exchange Act and their respective directors~~Act), ~~trustees, officers, partners, agents, employees and affiliates~~ against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based ~~upon: (i)~~ on any untrue or ~~alleged~~ allegedly untrue statement of a material fact contained inin any registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein (in ~~the case of a Prospectus or a preliminary Prospectus, in the~~ light of the circumstances ~~then existing)~~ under which they were made, not misleading, ~~except in each case insofar as such statements~~ or omissions arise out of or are based upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of the Act or the Exchange Act or securities act of any ~~other federal~~ state or ~~state securities laws~~ any rule or ~~regulations~~ regulation thereunder applicable to the Company and relating to action or inaction required of ~~or inaction by~~ the Company in connection with ~~any such registration. Notwithstanding~~ the ~~foregoing provisions~~ registration of ~~this Section 12(a)~~Registrable Common Stock hereunder, the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior except to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Actextent, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the ~~extent~~ extent, that the same are caused by or contained in any ~~such untrue statement or omission is made in reliance on and in conformity with~~ information ~~with respect to such Holder~~ which any Selling Stockholder furnished in writing to the Company ~~by such Holder or its counsel specifically~~ expressly for use ~~therein; provided~~therein or by a Selling Stockholder's failure to deliver to a purchaser of securities a copy of the registration statement, ~~however, that no Holder shall be~~ prospectus or preliminary prospectus or any amendments thereof or supplements thereto at a time when such Selling Stockholder is required by the Act to ~~indemnify~~ do so after the Company ~~or any other indemnified party under this Section 12(b)~~ has furnished such Selling Stockholder with ~~respect to any amount in excess~~ a sufficient number of copies of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failuresame. In ~~case~~ connection with an underwritten offering, the Company will indemnify, protect and hold harmless the underwriters thereof, selling brokers, dealer managers, and similar securities industries professionals, their officers, directors, employees, agents and each Person who controls any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 12(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. No Person ~~guilty of fraudulent misrepresentation~~ (within the meaning of ~~Section 11(f~~the Act) to the same extent as provided above with respect to the indemnification of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 12, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d)Selling Stockholders. (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Subordinate Registration Rights Agreement (Iesi Corp)

Indemnification; Contribution. (a) The Company shall indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless each Holder in any offering or sale of Registrable ~~Securities~~Shares, each Person, if any, who participates as an underwriter in any offering and sale of Registrable ~~Securities~~Shares, and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and affiliates against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' ’ fees, disbursements and expenses, as incurred~~, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~) (collectively, "“Losses"”) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based ~~upon: (i)~~ upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (Ai) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (Bii) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (Ciii) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable ~~Securities~~ Shares to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold ~~harmless, to the fullest extent permitted by law,~~ harmless the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable ~~Securities~~ Shares and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section ~~12(b~~11(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable ~~Securities~~ Shares of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 11 except to the extent the indemnifying party shall have been actually ~~and materially~~ prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party 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, unless in the reasonable judgment of any indemnified party, based on the written opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable ~~Securities~~ Shares who are indemnified parties, selected by the Holders of a ~~Majority~~ majority of the Registrable ~~Securities~~ Shares who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the written opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable ~~Securities~~ Shares who are indemnified parties, selected by the Holders of a ~~Majority~~ majority of the Registrable ~~Securities~~ Shares who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 1211. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 12 11 is unavailable to an indemnified party hereunder in respect to any Losses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable ~~Securities~~ Shares of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section ~~12(c~~11(c), any legal or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or 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. The parties agree that it would not be just and equitable if contribution pursuant to this Section ~~12(d~~11(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section ~~12(d~~11(d). If indemnification is available under this Section 1211, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section ~~12(a~~11(a) or ~~12(b~~11(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section ~~12(d~~11(d). (e) The provisions of this Section 12 11 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Registration Rights Agreement (Colfax CORP)

Indemnification; Contribution. (a) ~~The Company shall indemnify and hold harmless~~In connection with any registration of Registrable Securities pursuant to Section 3.01 or 3.02 hereof, Xxxxxxxx American agrees to indemnify, to the fullest extent permitted by law, ~~each Holder in any offering or sale of Registrable Securities~~B&W, ~~each Person~~its affiliates, ~~if any~~their directors, ~~who participates as an underwriter in any offering~~ officers and ~~sale of Registrable Securities,~~ shareholders and each ~~Person, if any,~~ Person who controls ~~such Holder or such underwriter~~ B&W (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ~~Act~~ Act) against any and ~~their respective directors, trustees, officers, partners, agents, employees and affiliates against~~ all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees~~, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed~~) ~~(collectively, "Losses") incurred~~ caused by ~~such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon: (i)~~ any untrue or alleged untrue statement of a material fact contained inin any Registration Statement, prospectus or preliminary prospectus contained therein, or any omission or alleged omission of to state therein a material fact required to be stated ~~in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing~~ therein or necessary to make the statements therein (in the case of a ~~Prospectus or a preliminary Prospectus~~prospectus, in the light of the circumstances ~~then existing~~under which they were made) not misleading; provided, ~~except in each case insofar as such statements~~ however, that Xxxxxxxx American shall not be required to indemnify B&W, its affiliates, their officers, directors, shareholders or ~~omissions arise out of~~ controlling Persons for any losses, claims, damages, liabilities or ~~are based upon (A)~~ expenses resulting from any such untrue statement or ~~alleged untrue statement or~~ omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party. (b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities and each Person, if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any actual action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with any information with respect to B&W or such ~~Holder~~ other parties furnished to Xxxxxxxx American in writing ~~to the Company~~ by B&W or such ~~Holder or its counsel specifically~~ other parties expressly for use therein. In connection with an underwritten offering, Xxxxxxxx American will indemnify each Underwriter, the officers and directors of such Underwriter, and each Person who controls such Underwriter (within the meaning of either the Securities Act or the Exchange Act) to the same extent as provided above with respect to the indemnification of B & W; provided, however, that ~~no Holder shall be required~~ such Underwriter agrees to indemnify Xxxxxxxx American to the ~~Company or any other indemnified party under this Section 12(b)~~ same extent as provided below with respect to the indemnification of Xxxxxxxx American by B&W. Notwithstanding the forgoing, with respect to any ~~amount~~ untrue statement or omission of material fact made in ~~excess~~ any prospectus or preliminary prospectus, the provisions of this Section 3.08 shall not inure to the ~~amount~~ benefit of any Investor Party, any other holder of Registrable Securities or any Underwriter from whom the ~~total net proceeds received by~~ Person asserting any such ~~Holder from sales of~~ loss, claim, damages, liabilities or expenses purchased the Registrable Securities of such Holder under such Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall ~~wish~~be established that (i) any such loss, ~~jointly~~ claim, damages, liabilities or expenses of such Person arises primarily from the fact that any Investor Party or any Underwriter sold Registrable Securities to such a Person, (ii) there was not sent or given a copy of the final prospectus (as amended or supplemented) at or prior to the written confirmation of such sale (provided Xxxxxxxx American shall have previously furnished a sufficient number of copies thereof on a timely basis to the Investor Parties, any such holder and each Underwriter, as the case may be, in accordance herewith) and (iii) the final prospectus (as amended or supplemented) would have corrected any such untrue statement or omission of a material fact. (b) In connection with any Registration Statement, the Investor Parties holding Registrable Securities, as the case may be, will furnish to Xxxxxxxx American in writing such information and affidavits with respect to the Investor Parties holding Registrable Securities, as the case may be, as Xxxxxxxx American reasonably requests, including, but not limited to, information relating to the Investor Parties, as the case may be, for use in connection with any such Registration Statement, prospectus or preliminary prospectus and agrees to indemnify Xxxxxxxx American, its directors, its officers who sign the Registration Statement and each Person, if any, who controls Xxxxxxxx American (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as the foregoing indemnity from Xxxxxxxx American to B&W, but only with respect to information relating to B&W or such other holders of Registrable Securities, as the case may be, furnished to Xxxxxxxx American in writing by B&W expressly for use in the Registration Statement, the prospectus, any 32 amendment or supplement thereto, or any preliminary prospectus. (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 3.08(a) or (b), such Person (hereinafter called the indemnified party) shall promptly notify the Person against whom such indemnity may be sought (hereinafter called the indemnifying ~~party similarly notified~~party) in writing and the indemnifying party, ~~to assume~~ upon request of the ~~defense thereof~~indemnified party, ~~with~~ shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party 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, and after notice from~~ party unless (i) the indemnifying party ~~to such~~ and the indemnified party shall have mutually agreed to the retention of ~~its election so~~ such counsel or (ii) the named parties to ~~assume~~ any such proceeding (including any impleaded parties) include both the ~~defense thereof,~~ indemnifying party and the indemnified party and the indemnified party shall have been advised by counsel that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall ~~not be liable to such indemnified party for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party~~not, in connection with ~~the defense thereof other than reasonable costs of investigation, unless~~ any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable ~~judgment~~ fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all such indemnified parties, and that all such reasonable fees and expenses shall be reimbursed as they are incurred. In the case of the retention of any such separate firm for the indemnified ~~party~~parties, ~~based on~~ such firm shall be designated in writing by the ~~opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such~~ indemnified ~~party and any other of such indemnified parties with respect to such claim, in which event the~~ parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, 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 reasonable fees and expenses of counsel as contemplated by the third sentence of this Section 3.08(c), 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 one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified 30 days after receipt by such indemnifying party ~~with respect to~~ of the aforesaid request and (ii) such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not ~~be liable for~~ have reimbursed the ~~fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are~~ indemnified ~~parties~~party in accordance with such request or reasonably objected in writing, ~~selected by~~ on the ~~Holders of a Majority~~ basis of the ~~Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory~~ standards set forth herein, to the ~~Company), (ii) more than one counsel for~~ propriety of such reimbursement prior to the ~~underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions~~date of such settlement. No indemnifying ~~party, in defense of any such action, suit, proceeding or investigation,~~ party shall, ~~except with~~ without the prior written consent of ~~each~~ the indemnified party, ~~consent to the entry~~ effect any settlement of any ~~judgment~~ pending or ~~entry into~~ threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement ~~which does not include as~~ includes an unconditional ~~term thereof the giving by the claimant or plaintiff to~~ release of such indemnified party ~~of a release~~ from all liability ~~in respect to~~ on claims that are the subject matter of such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying partyproceeding. (d) If the indemnification ~~from the indemnifying party~~ provided for in this Section 12 3.08 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to ~~any Losses~~in this Section 3.08, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such ~~Losses~~ losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions ~~which~~ that resulted in such ~~Losses~~losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue ~~statement~~ or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the ~~Losses~~ losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section ~~12(c~~3.08(c), any legal or other fees ~~and~~ or expenses reasonably incurred by such ~~indemnified~~ party in connection with any investigation or proceeding. The parties agree that it would not be just and equitable if contribution pursuant to this Section 3.08(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in this Section 3.08(d). 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 parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 123.08, the indemnifying ~~parties~~ party shall indemnify each indemnified party to the full extent provided in ~~Section 12(a~~Sections 3.08(a) ~~or 12(b), as the case may be,~~ and (b) without regard to the relative fault of ~~such~~ said indemnifying ~~parties~~ party or indemnified party or any other equitable consideration provided for in this Section ~~12(d~~3.08(d). (e) The provisions of this Section 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the termination of this Agreement. (f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any action, suit, proceeding or investigation, as and when invoices are received or Losses are incurred.

Appears in 1 contract

Samples: Governance Agreement (Reynolds American Inc)

Common use of Indemnification; Contribution Clause in Contracts