Indemnification of Investor. Subject to the provisions of this Section 5.7, the Company will indemnify and hold Investor and any Warrant holder, their Affiliates and attorneys, and each of their directors, officers, shareholders, partners, employees, agents, and any person who controls Investor within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (collectively, the “Investor Parties” and each an “Investor Party”), harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation (collectively, “Losses”) that any Investor Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents, (b) any action instituted against any Investor Party, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of an Investor Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of Investor’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings Investor may have with any such stockholder or any violations by Investor of state or federal securities laws or any conduct by Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance), (c) any untrue statement of a material fact contained in a Registration Statement (or in a Registration Statement as amended by any post-effective amendment thereof by the Company) or arising out of or based upon any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and/or (d) any untrue statement of a material fact included in any Prospectus (or any amendments or supplements to any Prospectus ), in any “issuer information” (as defined in Rule 433 under the Act) of the Company, or in any Prospectus, or arising out of or based upon any omission or alleged omission to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company shall not be obligated to indemnify any Investor Party for any Losses suffered in respect of clauses (c) and/or (d) of this Section 5.7 to the extent such Losses occur in reliance upon and in conformity with written information furnished by such Investor Party expressly for use in connection with such Registration Statement. If any action shall be brought against an Investor Party in respect of which indemnity may be sought pursuant to this Agreement, such Investor Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. The Investor Parties shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Investor Parties except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of the Investor Parties. The Company will not be liable to the Investor Parties under this Agreement (i) for any settlement by an Investor Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to Investor’s breach of any of the representations, warranties, covenants or agreements made by Investor in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Medis Technologies LTD)
Indemnification of Investor. Subject (a) An Investor Indemnified Person will not be liable to the provisions of this Section 5.7Company, and the Company will shall indemnify and hold Investor and harmless each of the Investor, any Warrant holder, their Affiliates and attorneysgeneral partner or manager of the Investor, and Affiliates of each of their those parties, and the respective directors, officers, members, shareholders, partners, employees, agentsattorneys, agents and permitted successors and assigns of each of the Investor, any general partner or manager of the Investor, and any person who controls Affiliates of each of those parties (each, an Investor within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (collectively, the “Investor Parties” and each an “Investor Party”Indemnified Person), harmless from and against any and all losses, liabilities, obligations, claims, contingencies, damages, costs liabilities, awards, demands and expensesexpenses (including, including without limitation, all judgments, amounts paid in settlements, court costs and reasonable attorneys’ solicitors' fees and costs and attorney fees and disbursements and other expenses incurred in connection with investigating, preparing or defending any action, claim, proceeding, suit, investigation, or action by any Governmental Authority, pending or threatened, and the costs of investigation enforcement) (collectively, “Losses”), that arise out of, are based on, relate to, or are incurred in connection with, any of the following:
(i) that any Investor Party may suffer a breach or incur as non-performance by the Company of its covenants under this Agreement;
(ii) a result of material breach or relating to (a) any breach an inaccuracy of any of the representations, warranties, covenants Company's representations or agreements warranties made by the Company in this Agreement or Agreement;
(iii) any misrepresentation made in the other Transaction Documents, Materials or the Company's Public Record;
(biv) any action instituted against non-disclosure of any Investor Party"material fact" or "material change", or any of them or their respective Affiliatesas such terms are defined under Canadian Securities Laws, by any stockholder of the Company who is not an Affiliate of an Investor Partyor, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of Investor’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings Investor may have with any such stockholder or any violations by Investor of state or federal securities laws or any conduct by Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance), (c) any untrue statement of a material fact contained in a Registration Statement (or in a Registration Statement as amended by any post-effective amendment thereof by the Company) or arising out of or based upon any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and/or (d) any untrue statement of a material fact included in any Prospectus (the Materials or any amendments or supplements to any Prospectus )the Company’s Public Record, in any “issuer information” (as defined in Rule 433 under the Act) of the Company, or in any Prospectus, or arising out of or based upon any omission or alleged omission to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(v) any inquiry, investigation or proceeding commenced or threatened by, or in, any court, administrative body, securities commission, stock exchange or other competent authority (each a Proceeding) based upon, or resulting from, the execution, delivery, performance or enforcement of any of the Transaction Documents or Contemplated Transactions, and whether or not the Investor is party thereto by claim, counterclaim, crossclaim, as a defendant or otherwise, or if such Proceeding is based upon, or results from, any of those items referred to in paragraphs (i) – (iv), provided, however, that the Company shall not be obligated to indemnify any Investor Party Indemnified Person from, or hold any Investor Indemnified Person harmless against, any Losses that result solely from:
(vi) such Investor Indemnified Person's breach of any representation or warranty contained in this Agreement, or
(vii) such Investor Indemnified Person's fraud, gross negligence or wilful default in performing its obligations under this Agreement.
(b) To the extent that the Company's undertaking in this clause 16.2 may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of all Losses suffered in respect of clauses that is permissible under applicable Law.
(c) and/or To the extent that any amount payable to an Investor Indemnified Person in accordance with this clause 16.2 is subject to Tax or withholding, then, without limiting clause 10.18 or clause 11, the Company shall increase the amount payable to the Investor Indemnified Person by such additional amount as is necessary to ensure that after making the allowance for any Tax that may be payable, the Investor Indemnified Person receives the full amount required to be paid before giving effect to such allowance for Tax.
(d) of this Section 5.7 to the extent such Losses occur Each indemnity set out in reliance upon and in conformity with written information furnished by such Investor Party expressly for use in connection with such Registration Statement. If any action shall be brought against an Investor Party in respect of which indemnity may be sought pursuant to this Agreement, such Investor Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. The Investor Parties shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Investor Parties except to the extent that :
(i) is a continuing obligation, independent of the employment thereof has been specifically authorized by the Company in writing, Company's other obligations under this Agreement;
(ii) the Company has failed after a reasonable period continues notwithstanding any termination of time to assume such defense and to employ counsel or this Agreement;
(iii) in such action there is, in the reasonable opinion of such separate counsel, constitutes a material conflict on any material issue between the position liability of the Company separate and the position of the Investor Parties. The Company will not be liable to the Investor Parties independent from any other liability under this Agreement and under any other agreement; and
(iiv) for any settlement by an Investor Party effected without the Company’s prior written consentwill survive, which shall not be unreasonably withheld or delayed; or (ii) to the extentand continue in full force and effect, but only to the extent that a loss, claim, damage or liability is attributable to Investor’s breach of any of the representations, warranties, covenants or agreements made by Investor in this Agreement or in the other Transaction Documentsaccordance with clause 16.1.
Appears in 1 contract
Samples: Convertible Security Funding Agreement (Niocorp Developments LTD)
Indemnification of Investor. Subject (a) An Investor Indemnified Person will not be liable to the provisions of this Section 5.7Company, and the Company will shall indemnify and hold Investor and harmless each of the Investor, any Warrant holder, their Affiliates and attorneysgeneral partner or manager of the Investor, and Affiliates of each of their those parties, and the respective directors, officers, members, shareholders, partners, employees, agentsattorneys, agents and permitted successors and assigns of each of the Investor, any general partner or manager of the Investor, and any person who controls Affiliates of each of those parties (each, an Investor within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (collectively, the “Investor Parties” and each an “Investor Party”Indemnified Person), harmless from and against any and all losses, liabilities, obligations, claims, contingencies, damages, costs liabilities, awards, demands and expensesexpenses (including, including without limitation, all judgments, amounts paid in settlements, court costs and reasonable attorneys’ solicitors' fees and costs and attorney fees and disbursements and other expenses incurred in connection with investigating, preparing or defending any action, claim, proceeding, suit, investigation, or action by any Governmental Authority, pending or threatened, and the costs of investigation enforcement) (collectively, “Losses”), that arise out of, are based on, relate to, or are incurred in connection with, any of the following:
(i) that any Investor Party may suffer a breach or incur as non-performance by the Company of its covenants under this Agreement;
(ii) a result of breach or relating to (a) any breach an inaccuracy of any of the representations, warranties, covenants Company's representations or agreements warranties made by the Company in this Agreement or Agreement;
(iii) any misrepresentation made in the other Transaction Documents, Materials or the Company's Public Record;
(biv) any action instituted against non-disclosure of any Investor Party"material fact" or "material change" as such terms are defined under Canadian Securities Laws, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of an Investor Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of Investor’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings Investor may have with any such stockholder or any violations by Investor of state or federal securities laws or any conduct by Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance), (c) any untrue statement of a material fact contained in a Registration Statement (or in a Registration Statement as amended by any post-effective amendment thereof by the Company) or arising out of or based upon any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and/or (d) any untrue statement of a material fact included in any Prospectus (the Materials or any amendments or supplements to any Prospectus )the Company's public filings, in any “issuer information” (as defined in Rule 433 under the Act) of the Company, or in any Prospectus, or arising out of or based upon any omission or alleged omission to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(v) any inquiry, investigation or proceeding commenced or threatened by, or in, any court, administrative body, securities commission, stock exchange or other competent authority (each a Proceeding) based upon, or resulting from, the execution, delivery, performance or enforcement of any of the Transaction Documents or Contemplated Transactions, and whether or not the Investor is party thereto by claim, counterclaim, crossclaim, as a defendant or otherwise, or if such Proceeding is based upon, or results from, any of those items referred to in paragraphs (i) - (iv), provided, however, that the Company shall not be obligated to indemnify any Investor Party Indemnified Person from, or hold any Investor Indemnified Person harmless against, any Losses that result solely from:
(vi) such Investor Indemnified Person's breach of any representation or warranty contained in this Agreement, or
(vii) such Investor Indemnified Person's fraud, gross negligence or wilful default in performing its obligations under this Agreement.
(b) To the extent that the Company's undertaking in this clause 16.2 may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of all Losses suffered in respect of clauses that is permissible under applicable Law.
(c) and/or (d) of this Section 5.7 to To the extent such Losses occur in reliance upon and in conformity with written information furnished by such Investor Party expressly for use in connection with such Registration Statement. If that any action shall be brought against amount payable to an Investor Party Indemnified Person in respect of which indemnity may be sought pursuant accordance with this clause 16.2 is subject to this AgreementTax or withholding, such Investor Party shall promptly notify the Company in writingthen, and without limiting clause 10.16 or clause 11, the Company shall have increase the right to assume the defense thereof with counsel of its own choosing. The Investor Parties shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Investor Parties except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of the Investor Parties. The Company will not be liable amount payable to the Investor Parties under this Agreement (i) Indemnified Person by such additional amount as is necessary to ensure that after making the allowance for any settlement by an Tax that may be payable, the Investor Party effected without Indemnified Person receives the Company’s prior written consent, which shall not full amount required to be unreasonably withheld or delayed; or (ii) paid before giving effect to the extent, but only to the extent that a loss, claim, damage or liability is attributable to Investor’s breach of any of the representations, warranties, covenants or agreements made by Investor in this Agreement or in the other Transaction Documentssuch allowance for Tax.
Appears in 1 contract
Samples: Convertible Security Funding Agreement (Avalon Advanced Materials Inc.)
Indemnification of Investor. Subject to the provisions of this Section 5.7The Company shall indemnify, the Company will indemnify defend and hold Investor harmless the Investors and any Warrant holder, their Affiliates and attorneys, and each of their directorsits respective subsidiaries, officers, shareholdersdirectors and owners from and against and in respect of any and all demands, partnersclaims, employeesactions or causes of action, agentsassessments, losses, damages, liabilities, interest and penalties, costs and expenses (including, without limitation, reasonable legal fees and disbursements incurred in connection therewith and in seeking indemnification therefor, and any person who controls Investor within the meaning of Section 15 of the Act amounts or Section 20 of the Exchange Act expenses required to be paid or incurred in connection with any action, suit, proceeding, claim, appeal, demand, assessment or judgment) (collectively, the “Investor Parties” and each an “Investor PartyIndemnifiable Losses”), harmless from resulting from, arising out of, or imposed upon or incurred by any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs person to be indemnified hereunder (i) by reason of investigation (collectively, “Losses”) that any Investor Party may suffer or incur as a result of or relating to (a) any breach of any representation, warranty, covenant or agreement of the representations, warranties, covenants or agreements made by the Company contained in this Agreement or in the other Transaction Documentsany agreement, (b) certificate contemplated by this Agreement or any action instituted against any Investor Partyagreement, certificate, or any of them or their respective Affiliates, document executed and delivered by any stockholder of the Company who is not an Affiliate of an Investor Party, pursuant hereto or in connection with respect to any of the transactions contemplated by this Agreement or (ii) any Indemnifiable Losses arises under the Transaction Documents Securities Act, the Exchange Act, or any other federal or state statutory law or regulation, or at common law or otherwise (unless including in settlement of any litigation, if such action settlement is effected with the written consent of the Company), insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof as contemplated below) arise out of or are based upon a breach of Investor’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings Investor may have with any such stockholder or any violations by Investor of state or federal securities laws or any conduct by Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance), (c) any untrue statement or alleged untrue statement of a any material fact contained or incorporated by reference in the Registration Statement, including financial statements and schedules, and all other documents filed as a part thereof, including any information deemed to be a part thereof as of the time of effectiveness pursuant to paragraph (b) of Rule 430A, or pursuant to Rule 434, under the Securities Act, or in the prospectus related thereto, in the form first filed with the SEC pursuant to Rule 424(b) under the Securities Act or filed as part of the Registration Statement at the time of effectiveness if no Rule 424(b) filing is required (the “Prospectus”) or in a any amendment or supplement to the Registration Statement as amended by any post-effective amendment thereof by the Company) or arising Prospectus, or arise out of or are based upon any the omission or alleged omission to state in any of them a material fact required to be stated therein or necessary to make the statements therein not misleading, and/or (d) any untrue statement of a material fact included in any Prospectus (or any amendments or supplements to any Prospectus )of them, in any “issuer information” (as defined in Rule 433 under the Act) of the Company, or in any Prospectus, or arising out of or based upon any omission or alleged omission to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and will reimburse the Investors for reasonable legal and other expenses as such expenses are incurred by the Investors or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the Company shall will not be obligated liable in any such case to indemnify any Investor Party for any Losses suffered in respect of clauses (c) and/or (d) of this Section 5.7 the Investors to the extent that any such Losses occur loss, claim, damage, liability or expense arises out of or is based upon (i) an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by such Investor Party or on behalf of the Investors expressly for use in connection with such the Registration Statement. If , the Prospectus or any action shall be brought against an Investor Party in respect of which indemnity may be sought pursuant to this Agreementamendment or supplement thereto, such Investor Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. The Investor Parties shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Investor Parties except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, or (ii) the Company has failed after a reasonable period failure of time the applicable Investor to assume such defense comply with the covenants and to employ counsel agreements contained in Section 5.2 of this Agreement regarding the resale of the Shares, or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of the Investor Parties. The Company will not be liable to the Investor Parties under this Agreement (i) for any settlement by an Investor Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to Investor’s breach inaccuracy of any of the representations, warranties, covenants or agreements representations and warranties made by Investor the Investors in this Agreement or (iv) any untrue statement or omission of a material fact required to make such statement not misleading in any Prospectus that is corrected in any subsequent Prospectus or supplement thereto that was delivered to the other Transaction DocumentsInvestors a reasonable amount of time before the pertinent sale or sales by the Investors or (v) a direct claim against the Company by such Investor if such Investor is a person that is under common control with any Investor (as opposed to a third-party claim against such Investor).
Appears in 1 contract
Indemnification of Investor. Subject to In further consideration of the provisions Investor’s execution and delivery, or acceptance, of this Section 5.7Agreement and acquiring the Securities hereunder, and in addition to all of the Company’s other obligations under this Agreement, the Company will shall defend, protect, indemnify and hold harmless the Investor and any Warrant holder, their Affiliates each other holder of such Securities and attorneys, and each all of their directors, officers, shareholders, partners, employeesmembers, agentsofficers, directors, employees and direct or indirect investors and any person who controls Investor within the meaning of Section 15 of the Act foregoing Persons’ agents or Section 20 of other representatives (including, without limitation, those retained in connection with the Exchange Act transactions contemplated by this Agreement) (collectively, the “Investor Parties” Indemnitees”) from and each an “Investor Party”), harmless from against any and all lossesactions, liabilitiescauses of action, obligationssuits, claims, contingencieslosses, costs, penalties, fees, liabilities and damages, costs and expensesexpenses in connection therewith (irrespective of whether any such Investor Indemnitee is a party to the action for which indemnification hereunder is sought), and including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation disbursements (collectivelythe “Investor Indemnified Liabilities”), “Losses”) that incurred by any Investor Party may suffer or incur Indemnitee as a result of of, or arising out of, or relating to (ai) any intentional misrepresentation or material breach of any of the representations, warranties, covenants representation or agreements warranty made by the Company in this Agreement or in the any other Transaction Documentscertificate, instrument or document contemplated hereby or thereby, (bii) any action instituted against material breach of any Investor Partycovenant, agreement or any of them or their respective Affiliates, by any stockholder obligation of the Company who is not an Affiliate of an Investor Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of Investor’s representation, warranties or covenants under the Transaction Documents contained in this Agreement or any agreements other certificate, instrument or understandings Investor may have with any such stockholder document contemplated hereby or any violations by Investor of state thereby, or federal securities laws or any conduct by Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance), (ciii) any untrue statement cause of action, suit or claim brought or made against such Investor Indemnitee by a material fact contained in third party (including for these purposes a Registration Statement (or in a Registration Statement as amended by any post-effective amendment thereof by derivative action brought on behalf of the Company) or and arising out of or based upon any omission to state a material fact required to be stated therein resulting from the execution, delivery, performance by the Company or necessary to make the statements therein not misleading, and/or (d) any untrue statement enforcement of a material fact included in any Prospectus (this Agreement or any amendments other certificate, instrument or supplements to any Prospectus )document contemplated hereby or thereby. Notwithstanding the foregoing, in any “issuer information” (as defined in Rule 433 under the Act) of the Company, or in any Prospectus, or arising out of or based upon any omission or alleged omission to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company shall not be obligated to indemnify any Investor Party for any Losses suffered in respect of clauses (c) and/or (d) of this Section 5.7 to the extent such Losses occur in reliance upon and in conformity with written information furnished by such Investor Party expressly for use in connection with such Registration Statement. If any action shall be brought against an Investor Party in respect of which indemnity may be sought pursuant to this Agreement, such Investor Party shall promptly notify the Company in writing, and the Company shall have no indemnification obligation to the right extent any Investor Indemnified Liabilities are due to assume the defense thereof with counsel of its own choosing. The Investor Parties shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense gross negligence or willful misconduct of the Investor Parties except to Indemnitees. To the extent that (i) the employment thereof has been specifically authorized foregoing undertaking by the Company in writingmay be unenforceable for any reason, (ii) the Company has failed after a reasonable period shall make the maximum contribution to the payment and satisfaction of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position each of the Investor Parties. The Company will not be liable to the Investor Parties Indemnified Liabilities which is permissible under this Agreement (i) for any settlement by an Investor Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to Investor’s breach of any of the representations, warranties, covenants or agreements made by Investor in this Agreement or in the other Transaction Documentsapplicable law.
Appears in 1 contract
Samples: Follow on Securities Purchase Agreement (Birner Dental Management Services Inc)
Indemnification of Investor. Subject (a) An Investor Indemnified Person will not be liable to the provisions of this Section 5.7Company, and the Company will shall indemnify and hold Investor and harmless each of the Investor, any Warrant holder, their Affiliates and attorneysgeneral partner or manager of the Investor, and Affiliates of each of their those parties, and the respective directors, officers, members, shareholders, partners, employees, agentsattorneys, agents and permitted successors and assigns of each of the Investor, any general partner or manager of the Investor, and any person who controls Affiliates of each of those parties (each, an Investor within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (collectively, the “Investor Parties” and each an “Investor Party”Indemnified Person), harmless from and against any and all losses, liabilities, obligations, claims, contingencies, damages, costs liabilities, awards, demands and expensesexpenses (including, including without limitation, all judgments, amounts paid in settlements, court costs and reasonable attorneyssolicitors’ fees and costs and attorney fees and disbursements and other expenses incurred in connection with investigating, preparing or defending any action, claim, proceeding, suit, investigation, or action by any Governmental Authority, pending or threatened, and the costs of investigation enforcement) (collectively, “Losses”), that arise out of, are based on, relate to, or are incurred in connection with, any of the following:
(i) that any Investor Party may suffer a breach or incur as non-performance by the Company of its covenants under this Agreement;
(ii) a result of material breach or relating to (a) any breach an inaccuracy of any of the representations, warranties, covenants Company’s representations or agreements warranties made by in this Agreement;
(iii) any misrepresentation made in the Materials or the Company’s Public Record in relation to the Company in this Agreement or in the other Transaction Documents, Contemplated Transactions;
(biv) any action instituted against non-disclosure of any Investor Party, material fact or any of them or their respective Affiliates, by any stockholder of material change in relation to the Company who is not an Affiliate of an Investor Partyor the Contemplated Transactions, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of Investor’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings Investor may have with any such stockholder or any violations by Investor of state or federal securities laws or any conduct by Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance), (c) any untrue statement of a material fact contained in a Registration Statement (or in a Registration Statement as amended by any post-effective amendment thereof by the Company) or arising out of or based upon any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and/or (d) any untrue statement of a material fact included in any Prospectus (the Materials or any amendments or supplements to any Prospectus )the Company’s public filings, in any “issuer information” (as defined in Rule 433 under the Act) of the Company, or in any Prospectus, or arising out of or based upon any omission or alleged omission to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(v) any inquiry, investigation or proceeding commenced or threatened by, or in, any court, administrative body, securities commission, stock exchange or other competent authority (each a Proceeding) based upon, or resulting from, the execution, delivery, performance or enforcement of any of the Transaction Documents, and whether or not the Investor is party thereto by claim, counterclaim, crossclaim, as a defendant or otherwise, or if such Proceeding is based upon, or results from, any of those items referred to in paragraphs (i) – (iv), provided, however, that the Company shall not be obligated to indemnify any Investor Party for Indemnified Person from, or hold any Investor Indemnified Person harmless against, any Losses suffered in respect of clauses that result solely from:
(cvi) and/or (d) of this Section 5.7 to the extent such Losses occur in reliance upon and in conformity with written information furnished by such Investor Party expressly for use in connection with such Registration Statement. If any action shall be brought against an Investor Party in respect of which indemnity may be sought pursuant to this Agreement, such Investor Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. The Investor Parties shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Investor Parties except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of the Investor Parties. The Company will not be liable to the Investor Parties under this Agreement (i) for any settlement by an Investor Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to InvestorIndemnified Person’s breach of any representation or warranty contained in this Agreement, or
(vii) such Investor Indemnified Person’s fraud, gross negligence or wilful default in performing its obligations under this Agreement.
(b) To the extent that the Company’s undertaking in this clause 16.2 may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of all Losses that is permissible under applicable law.
(c) To the extent that any amount payable to an Investor Indemnified Person in accordance with this clause 16.2 is subject to Tax or withholding, then, without limiting clause 10.20 or clause 11, the Company shall increase the amount payable to the Investor Indemnified Person by such additional amount as is necessary to ensure that after making the allowance for any Tax that may be payable, the Investor Indemnified Person receives the full amount required to be paid before giving effect to such allowance for Tax.
(d) Each indemnity set out in this Agreement:
(i) is a continuing obligation, independent of the representations, warranties, covenants or agreements made by Investor in Company’s other obligations under this Agreement;
(ii) continues notwithstanding any termination of this Agreement;
(iii) constitutes a liability of the Company separate and independent from any other liability under this Agreement or and under any other agreement; and
(iv) will survive, and continue in the other Transaction Documentsfull force and effect, in accordance with clause 16.1.
Appears in 1 contract
Samples: Convertible Security Funding Agreement (Niocorp Developments LTD)
Indemnification of Investor. Subject to the provisions of this Section 5.7section, the Company will indemnify and hold Investor and any Warrant holder, their Affiliates and attorneys, and each of their directors, officers, shareholders, partners, employees, agents, and any person who controls Investor within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (collectively, the “Investor Parties” and each an “Investor Party”), harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation (collectively, “Losses”) that any Investor Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents, (b) any action instituted against any Investor Party, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of an Investor Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of Investor’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings Investor may have with any such stockholder or any violations by Investor of state or federal securities laws or any conduct by Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance), (c) any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement (or in a Registration Statement as amended by any post-effective amendment thereof by the Company) or arising out of or based upon any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and/or (d) any untrue statement or alleged untrue statement of a material fact included in any Prospectus (( or any amendments or supplements to any Prospectus ), in any free writing prospectus, in any “issuer information” (as defined in Rule 433 under the Act) of the Company, or in any ProspectusProspectus together with any combination of one or more of the free writing prospectuses, if any, or arising out of or based upon any omission or alleged omission to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company shall not be obligated to indemnify any Investor Party for any Losses suffered in respect finally adjudicated to be caused solely by a false statement of clauses (c) and/or (d) of this Section 5.7 to the extent such Losses occur in reliance upon and in conformity with material fact contained within written information furnished provided by such Investor Party expressly for use the purpose of including it in connection with such the Registration Statement. If any action shall be brought against an Investor Party in respect of which indemnity may be sought pursuant to this Agreement, such Investor Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. The Investor Parties shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Investor Parties except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict with respect to the dispute in question on any material issue between the position of the Company and the position of the Investor Parties such that it would be inappropriate for one counsel to represent the Company and the Investor Parties. The Company will not be liable to the Investor Parties under this Agreement (i) for any settlement by an Investor Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is either attributable to Investor’s breach of any of the representations, warranties, covenants or agreements made by Investor in this Agreement or in the other Transaction DocumentsDocuments or is a result of any information provided by Investor or its representatives to Company in writing for inclusion in the Registration Statement.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Sparta Commercial Services, Inc.)
Indemnification of Investor. Subject to the provisions of this Section 5.7section, the Company will indemnify and hold Investor and any Warrant holderInvestor, their its Affiliates and attorneys, and each of their directors, officers, shareholders, partners, employees, agents, and any person who controls Investor within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (collectively, the “Investor Parties” and each an “Investor Party”), harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation (collectively, “Losses”) that any Investor Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents, (b) any action instituted against any Investor Party, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of an Investor Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of Investor’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings Investor may have with any such stockholder or any violations by Investor of state or federal securities laws or any conduct by Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance), (c) any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement (or in a Registration Statement as amended by any post-effective amendment thereof by the Company) or arising out of or based upon any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and/or (d) any untrue statement or alleged untrue statement of a material fact included in any Prospectus (or any amendments or supplements to any Prospectus Prospectus), in any free writing prospectus, in any “issuer information” (as defined in Rule 433 under the Act) of the Company, or in any ProspectusProspectus together with any combination of one or more of the free writing prospectuses, if any, or arising out of or based upon any omission or alleged omission to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company shall not be obligated to indemnify any Investor Party for any Losses suffered in respect finally adjudicated to be caused solely by a false statement of clauses (c) and/or (d) of this Section 5.7 to the extent such Losses occur in reliance upon and in conformity with material fact contained within written information furnished provided by such Investor Party expressly for use the purpose of including it in connection with such the applicable Registration Statement. If any action shall be brought against an Investor Party in respect of which indemnity may be sought pursuant to this Agreement, such Investor Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. The Investor Parties shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Investor Parties except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of the Investor Parties. The Company will not be liable to the Investor Parties under this Agreement (i) for any settlement by an Investor Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to Investor’s breach of any of the representations, warranties, covenants or agreements made by Investor in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (POSITIVEID Corp)
Indemnification of Investor. Subject (a) An Investor Indemnified Person will not be liable to the provisions of this Section 5.7Company, and the Company will shall indemnify and hold Investor and harmless each of the Investor, any Warrant holder, their Affiliates and attorneysgeneral partner or manager of the Investor, and Affiliates of each of their those parties, and the respective directors, officers, members, shareholders, partners, employees, agentsattorneys, agents and permitted successors and assigns of each of the Investor, any general partner or manager of the Investor, and any person who controls Affiliates of each of those parties (each, an Investor within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (collectively, the “Investor Parties” and each an “Investor Party”Indemnified Person), harmless from and against any and all losses, liabilities, obligations, claims, contingencies, damages, costs liabilities, awards, demands and expensesexpenses (including, including without limitation, all judgments, amounts paid in settlements, court costs and reasonable attorneyssolicitors’ fees and costs and attorney fees and disbursements and other expenses incurred in connection with investigating, preparing or defending any action, claim, proceeding, suit, investigation, or action by any Governmental Authority, pending or threatened, and the costs of investigation enforcement) (collectively, “Losses”), that arise out of, are based on, relate to, or are incurred in connection with, any of the following:
(i) that any Investor Party may suffer a breach or incur as non-performance by the Company of its covenants under this Agreement;
(ii) a result of material breach or relating to (a) any breach an inaccuracy of any of the representations, warranties, covenants Company’s representations or agreements warranties made by in this Agreement;
(iii) any misrepresentation made in the Materials or the Company’s Public Record in relation to the Company in this Agreement or in the other Transaction Documents, Contemplated Transactions;
(biv) any action instituted against non-disclosure of any Investor Party, material fact or any of them or their respective Affiliates, by any stockholder of material change in relation to the Company who is not an Affiliate of an Investor Partyor the Contemplated Transactions, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of Investor’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings Investor may have with any such stockholder or any violations by Investor of state or federal securities laws or any conduct by Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance), (c) any untrue statement of a material fact contained in a Registration Statement (or in a Registration Statement as amended by any post-effective amendment thereof by the Company) or arising out of or based upon any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and/or (d) any untrue statement of a material fact included in any Prospectus (the Materials or any amendments or supplements to any Prospectus )the Company’s public filings, in any “issuer information” (as defined in Rule 433 under the Act) of the Company, or in any Prospectus, or arising out of or based upon any omission or alleged omission to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(v) any inquiry, investigation or proceeding commenced or threatened by, or in, any court, administrative body, securities commission, stock exchange or other competent authority (each a Proceeding) based upon, or resulting from, the execution, delivery, performance or enforcement of any of the Transaction Documents, and whether or not the Investor is party thereto by claim, counterclaim, crossclaim, as a defendant or otherwise, or if such Proceeding is based upon, or results from, any of those items referred to in paragraphs (i) – (iv), provided, however, that the Company shall not be obligated to indemnify any Investor Party for Indemnified Person from, or hold any Investor Indemnified Person harmless against, any Losses suffered in respect of clauses that result solely from:
(cvi) and/or (d) of this Section 5.7 to the extent such Losses occur in reliance upon and in conformity with written information furnished by such Investor Party expressly for use in connection with such Registration Statement. If any action shall be brought against an Investor Party in respect of which indemnity may be sought pursuant to this Agreement, such Investor Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. The Investor Parties shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Investor Parties except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of the Investor Parties. The Company will not be liable to the Investor Parties under this Agreement (i) for any settlement by an Investor Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to InvestorIndemnified Person’s breach of any representation or warranty contained in this Agreement, or
(vii) such Investor Indemnified Person’s fraud, gross negligence or wilful default in performing its obligations under this Agreement.
(b) To the extent that the Company’s undertaking in this clause 16.2 may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of all Losses that is permissible under applicable law.
(c) To the extent that any amount payable to an Investor Indemnified Person in accordance with this clause 16.2 is subject to Tax or withholding, then, without limiting clause 10.17 or clause 11, the Company shall increase the amount payable to the Investor Indemnified Person by such additional amount as is necessary to ensure that after making the allowance for any Tax that may be payable, the Investor Indemnified Person receives the full amount required to be paid before giving effect to such allowance for Tax.
(d) Each indemnity set out in this Agreement:
(i) is a continuing obligation, independent of the representations, warranties, covenants or agreements made by Investor in Company’s other obligations under this Agreement;
(ii) continues notwithstanding any termination of this Agreement;
(iii) constitutes a liability of the Company separate and independent from any other liability under this Agreement or and under any other agreement; and
(iv) will survive, and continue in full force and effect, in accordance with clause 16.1.
(e) The Company acknowledges that the other Transaction Documentsindemnity given under this clause 16.2 is directly enforceable against it by any Investor Indemnified Person. The Investor holds the benefit of this clause 16.2 on trust for any Investor Indemnified Person.
Appears in 1 contract
Samples: Convertible Security Funding Agreement (Niocorp Developments LTD)