Indemnification of Purchasers. Subject to the provisions of this Section 4.4, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below), court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 (b) any action instituted against a Purchaser, or any of their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser 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, judgment or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Synova Healthcare Group Inc), Securities Purchase Agreement (Synova Healthcare Group Inc), Securities Purchase Agreement (Synova Healthcare Group Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, the Company will indemnify and hold the Purchasers each Purchaser and their its directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other the Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such the Purchaser's ’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such the Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such the Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such the Purchaser 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. Any Purchaser Party 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 such the Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such the Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers Purchaser in this Agreement or in the other Transaction Documents.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Airguide, Inc.), Securities Purchase Agreement (Pipeline Data Inc), Securities Purchase Agreement (CDX Com Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholdersstockholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Knockout Holdings, Inc.), Securities Purchase Agreement (Knockout Holdings, Inc.), Securities Purchase Agreement (Knockout Holdings, Inc.)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representationrepresentations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Cyberkinetics Neurotechnology Systems, Inc.), Securities Purchase Agreement (Insignia Systems Inc/Mn), Securities Purchase Agreement (Acies Corp)
Indemnification of Purchasers. Subject to the provisions of this Section 4.4, the The Company will indemnify and hold the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representationrepresentations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Linux Gold Corp), Securities Purchase Agreement (Practicexpert Inc), Securities Purchase Agreement (Practicexpert Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.12, each party (the Company "INDEMNIFYING PARTY") will indemnify and hold the Purchasers other parties and their directors, officers, shareholders, partners, employees and agents (each, a an "Purchaser PartyINDEMNIFIED PARTY") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Indemnified 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 Indemnifying Party in this Agreement or (b) any action instituted against a Purchaser, or any of their respective Affiliates, by any stockholder of in the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Documents. If any action shall be brought against any Purchaser Indemnified Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Indemnified Party shall promptly notify the Company Indemnifying Party in writing, and the Company Indemnifying Party shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Indemnified Party 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 such Purchaser Indemnified Party except to the extent that (i) the employment thereof has been specifically authorized by the Company Indemnifying Party in writing, (ii) the Company Indemnifying Party has failed after a reasonable period of time to assume such defense and to employ counsel (assuming an obligation to so assume the defense) 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 Indemnifying Party and the position of such Purchaser Indemnified Party. The Company Indemnifying Party will not be liable to any Purchaser Indemnified Party under this Agreement (i) for any settlement by an Purchaser Indemnified Party effected without the CompanyIndemnifying Party'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, judgment damage or liability is attributable to any Purchaser Indemnified Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents. In no event shall the liability of any Purchaser hereunder be greater in amount than the dollar amount of the net proceeds received by such Purchaser upon the sale of the Securities; provided that this provision shall not limit the Company's rights and remedies under any other provision pursuant to this Agreement, including but not limited to, the Company's rights under Section 5.15.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Svi Solutions Inc), Securities Purchase Agreement (Svi Solutions Inc), Securities Purchase Agreement (Island Pacific Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representationrepresentations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the such Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Intraop Medical Corp), Securities Purchase Agreement (World Waste Technologies Inc), Securities Purchase Agreement (World Waste Technologies Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.7, the Company will indemnify and hold the Purchasers each Purchaser and their its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees of such controlling persons (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any material breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or (b) any action instituted against a Purchaser, or any of their respective Affiliates, by any stockholder of in the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and and, the Company shall have the right to assume the defense thereof with counsel of its own choosingchoosing reasonably acceptable to the Purchaser Party. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) or (iii) in such action there is, in the reasonable opinion of such separate counsel, counsel a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (iy) for any settlement by an a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed, ; or (iiz) to the extent, but only to the extent that a loss, claim, damage, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents. The indemnification required by this Section 4.7 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.
Appears in 3 contracts
Samples: Securities Purchase Agreement (ReTo Eco-Solutions, Inc.), Form of Securities Purchase Agreement (Infobird Co., LTD), Securities Purchase Agreement (ReTo Eco-Solutions, Inc.)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld withheld, conditioned or delayed, ; or (ii) to the extent, but only to the extent that a loss, claim, damage, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Access Integrated Technologies Inc), Securities Purchase Agreement (Access Integrated Technologies Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.48.7, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees employees, managers, members, investment managers and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, fraud or willful misconduct or malfeasancemisconduct). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Forbes Medi Tech Inc), Securities Purchase Agreement (Forbes Medi Tech Inc)
Indemnification of Purchasers. Subject to The Company and the provisions of this Section 4.4, the Company Guarantors will indemnify and hold the Purchasers and their directorsharmless each Purchaser, its officers, shareholdersemployees, agents, partners, employees members, directors and agents its affiliates and each person, if any, who controls such Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a "Purchaser an “Indemnified Party") harmless from ”), against any and all losses, claims, damages or liabilities, obligationsjoint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages, costs and expenses, including all judgments, amounts paid damages or liabilities (or actions in settlements (subject to the provisions below), court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result respect thereof) arise out of or relating to (a) are based upon any breach untrue statement or alleged untrue statement of any of material fact contained in the representationsPreliminary Offering Circular or the Final Offering Circular, warranties, covenants in each case as amended or agreements made by the Company in this Agreement or (b) any action instituted against a Purchasersupplemented, or any Issuer Free Writing Communication (including with limitation, any Supplemental Marketing Material), or arise out of their respective Affiliatesor are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein, by any stockholder in the light of the Company who circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating, preparing or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is not an Affiliate a party thereto) whether threatened or commenced and in connection with the enforcement of such Purchaser or any other Purchaser, this provision with respect to any of the transactions contemplated by the Transaction Documents (unless above as such action is based upon a breach of such Purchaser's representationexpenses are incurred; provided, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraudhowever, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify that the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel Guarantors will not be liable in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except case 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 any such defense and to employ counsel (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser 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, judgment damage or liability arises out of or is attributable based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser Party's breach of any through the Representatives specifically for use therein, it being understood and agreed that the only such information consists of the representations, warranties, covenants or agreements made by the Purchasers information described as such in this Agreement or in the other Transaction Documentssubsection (b) below.
Appears in 2 contracts
Samples: Purchase Agreement (Dollar Financial Corp), Purchase Agreement (Wendy's/Arby's Group, Inc.)
Indemnification of Purchasers. Subject to the provisions of this Section 4.4, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Sub-Urban Brands, Inc.), Securities Purchase Agreement (Sub-Urban Brands, Inc.)
Indemnification of Purchasers. Subject to the provisions of this Section 4.45.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (North American Technologies Group Inc /Mi/), Securities Purchase Agreement (North American Technologies Group Inc /Mi/)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.9(a), the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser PartyPURCHASER PARTY") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representationrepresentations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Genius Products Inc), Securities Purchase Agreement (Genius Products Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.45.11, each party (the Company "INDEMNIFYING Party") will indemnify and hold the Purchasers other parties and their directors, officers, shareholders, partners, employees and agents (each, a an "Purchaser PartyINDEMNIFIED PARTY") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Indemnified 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 Indemnifying Party in this Agreement or (b) any action instituted against a Purchaser, or any of their respective Affiliates, by any stockholder of in the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Documents. If any action shall be brought against any Purchaser Indemnified Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Indemnified Party shall promptly notify the Company Indemnifying Party in writing, and the Company Indemnifying Party shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Indemnified Party 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 such Purchaser Indemnified Party except to the extent that (i) the employment thereof has been specifically authorized by the Company Indemnifying Party in writing, (ii) the Company Indemnifying Party has failed after a reasonable period of time to assume such defense and to employ counsel (assuming an obligation to so assume the defense) 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 Indemnifying Party and the position of such Purchaser Indemnified Party. The Company Indemnifying Party will not be liable to any Purchaser Indemnified Party under this Agreement (i) for any settlement by an Purchaser Indemnified Party effected without the CompanyIndemnifying Party'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, judgment damage or liability is attributable to any Purchaser Indemnified Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents. In no event shall the liability of any Purchaser hereunder be greater in amount than the dollar amount of the net proceeds received by such Purchaser upon the sale of the Securities.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Galaxy Energy Corp), Securities Purchase Agreement (Galaxy Energy Corp)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.8, the Company will indemnify and hold the Purchasers each Purchaser and their its directors, officers, shareholders, members, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation (collectively, “Losses”) that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach in any material respect of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or (b) any action instituted against a Purchaser, or any of their respective Affiliates, by any stockholder of in the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Documents. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. But in no event shall the Company be obligated to bear fees and disbursements of more than one law firm per Purchaser Party under the provisions of Section 4.9 or otherwise. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers applicable Purchaser in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Spatialight Inc), Securities Purchase Agreement (Spatialight Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.4, the The Company will indemnify and hold the Purchasers and their harmless each Purchaser, its partners, members, directors, officers, shareholdersemployees, partnersagents, employees affiliates and agents each person, if any, who controls such Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a "Purchaser an “Indemnified Party") harmless from ”), against any and all losses, claims, damages or liabilities, obligationsjoint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages, costs and expenses, including all judgments, amounts paid damages or liabilities (or actions in settlements (subject to the provisions below), court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result respect thereof) arise out of or relating to (a) are based upon any breach untrue statement or alleged untrue statement of any of material fact contained in the representationsPreliminary Offering Memorandum or the Final Offering Memorandum, warrantiesin each case as amended or supplemented, covenants or agreements any Issuer Free Writing Communication, any General Solicitation made by the Company (including, in this Agreement or (b) any action instituted against a Purchasereach case, the Exchange Act Reports, as applicable), or any arise out of their respective Affiliatesor are based upon the omission or alleged omission of a material fact necessary to make the statements therein, by any stockholder in the light of the Company who circumstances under which they were made, not misleading, and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating, preparing or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is not an Affiliate a party thereto), whether threatened or commenced, and in connection with the enforcement of such Purchaser or any other Purchaser, this provision with respect to any of the transactions contemplated by above as such expenses are incurred; provided, however, that the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to in any Purchaser Party under this Agreement (i) for any settlement by an Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed, or (ii) to the extent, but only such case to the extent that a any such loss, claim, damage, judgment damage or liability arises out of or is attributable based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser Party's breach of through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Purchaser consists of the representations, warranties, covenants or agreements made by the Purchasers information described as such in this Agreement or in the other Transaction Documentssubsection (b) below.
Appears in 2 contracts
Samples: Purchase Agreement (Enphase Energy, Inc.), Purchase Agreement (Enphase Energy, Inc.)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.7, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall will be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall will promptly notify the Company in writing, and the Company shall will have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall will 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 will be at the expense of such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’s prior written consent, which shall will not be unreasonably withheld or delayed, ; or (ii) to the extent, but only to the extent that a loss, claim, damage, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Bullion River Gold Corp), Securities Purchase Agreement (Bullion River Gold Corp)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including without limitation all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against (i) a Purchaser, or any of them or their respective AffiliatesAffiliates or (ii) a Purchaser Party, by any stockholder shareholder of the Company who is not an Affiliate of such Purchaser or any other PurchaserPurchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representation, warranties warranties, covenants or covenants agreements under the Transaction Documents or any agreements or understandings such Purchaser or a Purchaser Party may have with any such stockholder shareholder or any violations by the Purchaser or a Purchaser Party of state or federal securities laws or any conduct by such Purchaser or a Purchaser Party which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Verticalnet Inc), Securities Purchase Agreement (Verticalnet Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.4, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below), court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 (b) any action instituted against a Purchaser, or any of their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless Unless such action is based upon a breach of such Purchaser's ’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)malfeasance (collectively, “Non-Indemnifiable Claims”) and subject to the provisions of this Section 4.5, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each a “Purchaser 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 that any such Purchaser Party may suffer or incur as a result of or relating to any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or any violations by the Company of state or federal securities laws. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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, which counsel shall be reasonably acceptable to such Purchaser Party. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's breach of ’s Non-Indemnifiable Claim. The Company shall not settle any action without the prior written consent of the representationsrelevant Purchaser Party, warrantieswhich consent shall not be unreasonably withheld, covenants delayed or agreements made by the Purchasers in this Agreement or in the other Transaction Documentsconditioned, unless such settlement includes an unconditional release of such Purchaser Party from all liability and does not otherwise impose any obligations on such Purchaser Party.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Panamerican Bancorp), Securities Purchase Agreement (Prides Capital Partners, LLC)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser PartyPURCHASER PARTY") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Access Integrated Technologies Inc), Securities Purchase Agreement (Cirond Corp)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.13, the Company will indemnify and hold the Purchasers each Purchaser and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 (b) any action instituted against a Purchaser, or any of their respective Affiliates, by any stockholder of in the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Documents. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed, ; or (ii) to the extent, but only to the extent that a any loss, claim, damage, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers each Purchaser in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (U S Restaurant Properties Inc), Securities Purchase Agreement (U S Restaurant Properties Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.43.4, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below), court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 (b) any action instituted against a Purchaser, or any of their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser Party effected without the Company's ’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, judgment or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Express Systems Corp), Securities Purchase Agreement (Manas Petroleum Corp)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.8, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representationrepresentations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) or (iii) in such action there is, in the reasonable opinion of such separate counsel, is a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Workstream Inc), Securities Purchase Agreement (Workstream Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.7, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Wave Systems Corp), Securities Purchase Agreement (Wave Systems Corp)
Indemnification of Purchasers. Subject The Company shall indemnify, to the provisions of this Section 4.4fullest extent lawful, the Company will indemnify and hold the Purchasers harmless (a) each Purchaser and their directors, officers, shareholders, partners, employees Related Person from and agents (each, a "Purchaser Party") harmless from against any and all lossesLosses, liabilitiesas incurred, obligationsdirectly or indirectly arising out of, claims, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below), court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of based upon or relating to (ai) any breach by the Company of any of the representations, warranties, warranties or covenants or agreements made by the Company in this Agreement or (b) any action instituted against a Purchaserother Transaction Document, or any of their respective Affiliatesallegation by a third party that, by any stockholder of the Company who is not an Affiliate of if true, would constitute such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed, or (ii) to the extentany Proceeding brought by or against any Person, but only to the extent that directly or indirectly, in connection with or as a loss, claim, damage, judgment or liability is attributable to any Purchaser Party's breach result of any of the representationsTransactions, warrantiesand (b) each Initial Purchaser from and against any and all Losses, covenants as incurred, directly or agreements made by the Purchasers indirectly arising out of, base upon or relating to (i) any untrue statement or alleged untrue statement of a material fact contained in this Agreement or in the any other Transaction DocumentsDocument or the Offering Memorandum (as hereinafter defined) or arising out of or based upon the omission or alleged omission to state in this Agreement, the Offering Memorandum or any other Transaction Document a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or (ii) any termination by the Company of, or failure by the Company to consummate the Transactions. The indemnification and expense reimbursement obligations of the Company under this paragraph shall be in addition to any liability that the Company may otherwise have and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the applicable Purchasers and any such Related Persons of such Purchasers. If the Company breaches its obligations under any Transaction Document, then, in addition to any other liabilities the Company may have under any Transaction Document or applicable law, the Company shall pay or reimburse the Purchasers on demand for all costs of collection and enforcement (including reasonable attorneys fees and expenses). Without limiting the generality of the foregoing, the Company specifically agrees to reimburse the Purchasers on demand for all costs of enforcing the indemnification obligations in this paragraph.
Appears in 2 contracts
Samples: Preferred Stock Purchase Agreement (Ares Corporate Opportunities Fund Lp), Preferred Stock Purchase Agreement (Hanger Orthopedic Group Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for obligations pursuant to any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Subscription Agreement (Gentium S.p.A.), Securities Subscription Agreement (Gentium S.p.A.)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.13, the Company will indemnify and hold the Purchasers each Purchaser and their respective directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 (b) any action instituted against a Purchaser, or any of their respective Affiliates, by any stockholder of in the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Documents. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Hollis Eden Pharmaceuticals Inc /De/), Securities Purchase Agreement (Hollis Eden Pharmaceuticals Inc /De/)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholdersstockholders, members, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Emagin Corp), Securities Purchase Agreement (Emagin Corp)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all out-of-pocket losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not a Purchaser or an Affiliate of such Purchaser or any other a Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Exabyte Corp /De/), Securities Purchase Agreement (Exabyte Corp /De/)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representationrepresentations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Mdi, Inc.), Securities Purchase Agreement (Spatialight Inc)
Indemnification of Purchasers. Subject to The Company and the provisions of this Section 4.4, the Company Guarantor will indemnify and hold the Purchasers and their directorsharmless each Purchaser, its officers, shareholdersemployees, agents, partners, employees members, directors and agents its affiliates and each person, if any, who controls such Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a "Purchaser an “Indemnified Party") harmless from ”), against any and all losses, claims, damages or liabilities, obligationsjoint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal, state or Canadian statutory law or regulation or otherwise, insofar as such losses, claims, damages, costs and expenses, including all judgments, amounts paid damages or liabilities (or actions in settlements (subject to the provisions below), court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result respect thereof) arise out of or relating to (a) are based upon any breach untrue statement or alleged untrue statement of any of material fact contained in the representationsPreliminary Offering Circular or the Final Offering Circular, warranties, covenants in each case as amended or agreements made by the Company in this Agreement or (b) any action instituted against a Purchasersupplemented, or any Issuer Free Writing Communication (including with limitation, any Supplemental Marketing Material), or the Exchange Act Reports, or arise out of their respective Affiliatesor are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein, by any stockholder in the light of the Company who circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating, preparing or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is not an Affiliate a party thereto), whether threatened or commenced and in connection with the enforcement of such Purchaser or any other Purchaser, this provision with respect to any of the transactions contemplated by the Transaction Documents (unless above as such action is based upon a breach of such Purchaser's representationexpenses are incurred; provided, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraudhowever, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify that the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel Guarantor will not be liable in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except case 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 any such defense and to employ counsel (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser 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, judgment damage or liability arises out of or is attributable based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser Party's breach of through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Purchaser consists of the representations, warranties, covenants or agreements made by the Purchasers information described as such in this Agreement or in the other Transaction Documentssubsection (b) below.
Appears in 2 contracts
Samples: Purchase Agreement (Kodiak Oil & Gas Corp), Purchase Agreement (Kodiak Oil & Gas Corp)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld withheld, conditioned or delayed, ; or (ii) to the extent, but only to the extent that a loss, claim, damage, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Access Integrated Technologies, Inc. D/B/a Cinedigm Digital Cinema Corp.), Securities Purchase Agreement (Access Integrated Technologies, Inc. D/B/a Cinedigm Digital Cinema Corp.)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.6, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser PartyPURCHASER PARTY") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Able Energy Inc), Securities Purchase Agreement (Able Energy Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.8, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "each Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a PurchaserPurchaser in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the such Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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 choosingchoosing reasonably acceptable to the Purchaser. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser PartyPurchaser, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (iy) for any settlement by an a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed, ; or (iiz) to the extent, but only to the extent that a loss, claim, damage, judgment damage or liability is attributable to any Purchaser Party's Purchaser’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers such Purchaser in this Agreement or in the other Transaction Documents. The indemnification required by this Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser against the Company or others and any liabilities the Company may be subject to pursuant to law.
Appears in 2 contracts
Samples: Securities Purchase Agreement (NovaBay Pharmaceuticals, Inc.), Securities Purchase Agreement (NovaBay Pharmaceuticals, Inc.)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any material breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any arising solely out of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) or (iii) in such action there is, in the reasonable written opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (RCG Companies Inc), Securities Purchase Agreement (RCG Companies Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.4, the The Company will indemnify and hold the Purchasers each Purchaser and their its directors, managers, officers, shareholders, members, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 Agreements or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents Agreements (unless such action is based upon a breach by such Purchaser of such Purchaser's representationits representations, warranties or covenants under the Transaction Documents Agreements or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the such Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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 choosingchoosing and to control any settlement of the claim; provided, however, that the Company will not settle any claim unless it first obtains the consent of the relevant Purchaser Parties, which consent shall not be unreasonably withheld if such settlement (i) does not require the Purchaser Parties to make any payment that is not indemnified under this Agreement, (ii) does not impose any non-financial obligations on the Purchaser Parties and (iii) does not require an acknowledgment of wrongdoing on the part of the Purchaser Parties. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayeddelayed (it being agreed that it shall not be unreasonable for the Company to withhold or delay such consent if the Company (x) has acknowledged in writing its obligation to indemnify such Purchaser Party with respect to such matter, (y) the Company has assumed and is actively and in good faith pursuing the defense of such matter as herein provided, and (z) provided to such Purchaser Party reasonably acceptable evidence that the Company is able to comply with its indemnification obligations hereunder); or (ii) to the extent, but only to the extent that a loss, claim, damage, judgment damage or liability is attributable to any such Purchaser Party's ’s wrongful actions or omissions, or gross negligence or to such Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers such Purchaser in this Agreement or in the other Transaction DocumentsAgreements.
Appears in 2 contracts
Samples: Note Purchase and Warrant Agreement (Bond Laboratories, Inc.), Note Purchase and Warrant Agreement (AskMeNow,Inc.)
Indemnification of Purchasers. Subject to The Issuers and the provisions of this Section 4.4, the Company Guarantors will jointly and severally indemnify and hold the Purchasers and their directorsharmless each Purchaser, its officers, shareholdersemployees, agents, partners, employees members, directors and agents its affiliates and each person, if any, who controls such Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a "Purchaser an “Indemnified Party") harmless from ”), against any and all losses, claims, damages or liabilities, obligationsjoint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages, costs and expensesor liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or supplemented, any Additional Issuer Information or any Issuer Free Writing Communication (including all judgmentswith limitation, amounts paid in settlements (subject to the provisions belowany Supplemental Marketing Material), court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result arise out of or relating are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein not misleading, and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating, preparing or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (awhether or not such Indemnified Party is a party thereto) any breach whether threatened or commenced and in connection with the enforcement of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or (b) any action instituted against a Purchaser, or any of their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, provision with respect to any of the transactions contemplated by above as such expenses are incurred; provided, however, that the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, Issuers and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel Guarantors will not be liable in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except case 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 any such defense and to employ counsel (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser 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, judgment damage or liability arises out of or is attributable based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Issuers by any Purchaser Party's breach of any through the Representative specifically for use therein, it being understood and agreed that the only such information consists of the representations, warranties, covenants or agreements made by the Purchasers information described as such in this Agreement or in the other Transaction Documentssubsection (b) below.
Appears in 2 contracts
Samples: Purchase Agreement (Parsley Energy, Inc.), Purchase Agreement (Parsley Energy, Inc.)
Indemnification of Purchasers. Subject to the provisions of this Section 4.46(e), the Company will indemnify and hold the Purchasers each Purchaser and their its respective directors, officers, shareholders, partners, members, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (ai) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or (bii) any action instituted against a Purchaserany Purchasers, Purchaser Party or any of their respective Affiliates, by any stockholder of the Company or other person who is not an Affiliate of any such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents this Agreement (unless such action is based upon a breach of such Purchaser's ’s representation, warranties or covenants under the Transaction Documents this Agreement or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the such Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasancelaws). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party except to the extent that (iA) the employment thereof has been specifically authorized by the Company in writing, ; (iiB) the Company has failed after a reasonable period of time to assume such defense and to employ counsel (assuming an obligation reasonably acceptable to so assume the defense) such Purchaser Party or (iiiC) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (iI) for any settlement by an a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld withheld, conditioned or delayed, ; or (iiII) to the extent, but only to the extent that a loss, claim, damage, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers such Purchaser in this Agreement or in the other Transaction DocumentsAgreement.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Osteologix, Inc.), Securities Purchase Agreement (Osteologix, Inc.)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.6, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that reasonably incurred in connection with defending or investigating any suit or action in respect thereof to which any such Purchaser Party may suffer become a party under the Securities Act, the Exchange Act or incur other federal or state statutory law or regulation, at common law or otherwise, insofar as a result such losses, liabilities, obligations, claims, contingencies, damages, costs and expenses arise out of or relating to are based on (a) any breach untrue statement or alleged untrue statement of any of a material fact contained in the representationsRegistration Statement or the Prospectus Supplement, warranties, covenants or agreements made by the Company in this Agreement or (b) any action instituted against the omission or alleged omission to state therein a Purchasermaterial fact required to be stated therein or necessary to make the statements therein not misleading, or any of their respective Affiliates, by any stockholder of provided that the Company who is will not an Affiliate be liable in any such case to the extent that any such liability, obligation, claim, contingency, damage, cost or expense arises out of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach any untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Purchasers for inclusion therein. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed, ; or (ii) to the extent, but only to the extent extent, that a loss, claim, damage, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Novavax Inc), Securities Purchase Agreement (Novavax Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.7, the Company will indemnify and hold the Purchasers each Purchaser and their its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees of such controlling persons (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any material breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or (b) any action instituted against a Purchaser, or any of their respective Affiliates, by any stockholder of in the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Documents. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and and, the Company shall have the right to assume the defense thereof with counsel of its own choosingchoosing reasonably acceptable to the Purchaser Party. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) or (iii) in such action there is, in the reasonable opinion of such separate counsel, counsel a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (iy) for any settlement by an a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed, ; or (iiz) to the extent, but only to the extent that a loss, claim, damage, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents. The indemnification required by this Section 4.7 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.
Appears in 2 contracts
Samples: Securities Purchase Agreement (EZGO Technologies Ltd.), Securities Purchase Agreement (EZGO Technologies Ltd.)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation collectively, (collectively, "Loss") that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Ramp Corp), Securities Purchase Agreement (Ramp Corp)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.1, the Company will indemnify and hold the Purchasers each Purchaser and their its directors, officers, shareholders, members, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such ’ fees, incurred by or imposed upon the Purchaser Party may suffer or incur as a result which results, arises out of or relating to is based upon (a) any breach an untrue statement or alleged untrue statement of any a material fact contained in the Registration Statement, including the information deemed to be a part of the representationsRegistration Statement at the time of effectiveness and at any subsequent time pursuant to Rules 430A and 430B of the Rules and Regulations, warrantiesor arise out of or are based upon the omission from the Registration Statement, covenants or agreements made by alleged omission to state therein, a material fact required to be stated therein or necessary to make the Company in this Agreement statements therein not misleading, or (b) any action instituted against an untrue statement or alleged untrue statement of a Purchasermaterial fact contained in the General Disclosure Package, the Prospectus, or any amendment or supplement thereto (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Registration Statement or the Prospectus), any Issuer Free Writing Prospectus, or the Marketing Materials, or arise out of their respective Affiliatesor are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, by any stockholder in light of the Company who is circumstances under which they were made, not an Affiliate of misleading, and will reimburse such Purchaser Party for their reasonable legal or any other Purchaserout of pocket expenses reasonably incurred and documented by them in connection with evaluating, with respect to any of the transactions contemplated by the Transaction Documents (unless investigating or defending against such action is based upon a breach of such Purchaser's representationloss, warranties claim, damage, liability or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)action. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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 choosingchoosing reasonably acceptable to the Purchaser Party, but the failure to notify the Company shall not relieve it from liability that it may have under this Section 4.1 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) or (iiiii) 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 such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company shall not, without the prior written consent of the Purchaser Party, which consent shall not be unreasonably withheld or delayed, effect any settlement of any pending or threatened action in respect of which any Purchaser Party is or could have been a party and indemnity could have been sought hereunder by such Purchaser Party unless such settlement (i) includes an unconditional release of such Purchaser Party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to, or an admission of, fault, culpability, or a failure to act by or on behalf of a Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (iy) for any settlement by an a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed, ; or (iiz) to the extent, but only to the extent that a loss, claim, damage, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers such Purchaser Party in this Agreement or in the other Transaction DocumentsDocuments or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which constitutes fraud, gross negligence, willful misconduct or malfeasance. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law; provided, however, that no Purchaser shall be entitled to any double recovery of damages as a result of the exercise of any other such right.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Blue Sphere Corp.), Securities Purchase Agreement (Blue Sphere Corp.)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder shareholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder shareholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (New Dragon Asia Corp), Securities Purchase Agreement (New Dragon Asia Corp)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.8, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including without limitation all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against (i) a Purchaser, or any of them or their respective AffiliatesAffiliates or (ii) a Purchaser Party, by any stockholder shareholder of the Company who is not an Affiliate of such Purchaser or any other PurchaserPurchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties warranties, covenants or covenants agreements under the Transaction Documents or any agreements or understandings such Purchaser or a Purchaser Party may have with any such stockholder shareholder or any violations by the Purchaser or a Purchaser Party of state or federal securities laws or any conduct by such Purchaser or a Purchaser Party which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Zone 4 Play Inc), Securities Purchase Agreement (Zone 4 Play Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) or (iii) in such action such Purchaser Party has been advised in writing that 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction DocumentsDocuments or any agreement or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Cytrx Corp), Securities Purchase Agreement (Cytrx Corp)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.9, the Company will indemnify and hold the Purchasers and all of their directors, officers, employees, shareholders, partners, employees members, and direct or indirect investors and any of the foregoing Person’s agents or other representatives (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) (each, a "Purchaser Party"“PURCHASER PARTY”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation (collectively, “LOSSES”) that any such Purchaser Party may suffer or incur as a result of or relating to any (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 or (b) any cause of action, suit or claim brought or made against such Purchaser Party by a third party (including for these purposes a derivative action instituted against a Purchaser, or any of their respective Affiliates, by any stockholder brought on behalf of the Company who is not an Affiliate Company) and arising out of such Purchaser or any other Purchaserresulting from the execution, with respect to any delivery, performance or enforcement of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements other certificate, instrument or understandings such Purchaser may have with any such stockholder document contemplated hereby or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)thereby. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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, who shall be reasonably satisfactory to such Purchaser Party. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation reasonably satisfactory to so assume the defense) such Purchaser Party 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 such Purchaser Party. The Company will not be liable to any a Purchaser Party under this Section or otherwise under this Agreement (i) for any settlement by an Purchaser 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, judgment or liability is Losses for which the Company would otherwise be liable are attributable to any Purchaser Party's a breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction DocumentsDocuments by such Purchaser Party or the Purchaser with which it is affiliated or associated. To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Losses which is permissible under applicable law. Except as otherwise set forth herein, the mechanics and procedures with respect to the rights and obligations under this Section 4.9 shall be the same as those set forth in Sections 11 and 12 of the Registration Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Triangle Petroleum Corp)
Indemnification of Purchasers. Subject to the provisions of this Section 4.4, the The Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to to: (a) any misrepresentation, breach or inaccuracy, or any allegation by a third party that, if true, would constitute a breach or inaccuracy, of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents; or (b) any action instituted cause of action, suit or claim brought or made against a Purchasersuch Purchaser Party and arising solely out of or solely resulting from the execution, delivery, performance or enforcement of this Agreement or any of their respective Affiliates, the other Transaction Documents and without causation by any stockholder other activity, obligation, condition or liability pertaining to such Purchaser. The Company will reimburse such Purchaser for its reasonable legal and other expenses (including the cost of any investigation, preparation and travel in connection therewith) incurred in connection therewith, as such expenses are incurred. The indemnification obligations of the Company who is not an Affiliate under this paragraph shall be in addition to any liability that the Company may otherwise have and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Purchasers and any such Purchaser Party. The Company also agrees that neither the Purchasers nor any Purchaser Party shall have any liability to the Company or any other Purchaser, Person asserting claims on behalf of or in right of the Company in connection with respect to any or as a result of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representationDocuments, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized any Losses incurred by the Company result from the gross negligence or willful misconduct of the applicable Purchaser or Related Person in writing, (ii) breach of this Agreement in connection with such transactions. If the Company has failed after a reasonable period of time to assume such defense and to employ counsel (assuming an obligation to so assume the defense) or (iii) in such action there isbreaches its obligations under any Transaction Document, then, in addition to any other liabilities the Company may have under any Transaction Document or applicable law, the Company shall pay or reimburse the Purchasers on demand for all costs of collection and enforcement (including reasonable opinion of such separate counsel, a material conflict on any material issue between attorneys fees and expenses). Without limiting the position generality of the foregoing, the Company and the position of such Purchaser Party. The Company will not be liable specifically agrees to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser 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, judgment or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by reimburse the Purchasers on demand for all costs of enforcing the indemnification obligations in this Agreement or in the other Transaction Documentsparagraph.
Appears in 1 contract
Samples: Securities Purchase Agreement (Epoch Biosciences Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's (a) breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents; (b) willful and/or negligent actions; and/or (iii) violations of any applicable law, rule and/or regulation.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.8, the Company and the Holding Company, severally and jointly, will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or the Holding Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company or the Holding Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representationrepresentations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company or Holding Company in writing, and the Company or Holding Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party 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 such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company or the Holding Company in writing, (ii) the Company or Holding Company has failed after a reasonable period of time to assume such defense and to employ counsel (assuming an obligation to so assume the defense) 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 or the Holding Company and the position of such Purchaser Party, provided, however, that the Holding Company and Company shall not be liable pursuant to this sentence for the reasonable fees and expenses of more than one set of counsel and, if applicable, one set of local counsel, in any single action or group of related actions arising out of substantially the same set of operative facts. The Company and the Holding Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's or the Holding 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Common Horizons Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.10, the Company will indemnify and hold the Purchasers and their respective directors, officers, managers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a any Purchaser, or any of their respective its Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such a Purchaser may have with any such stockholder or any violations by the a Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers such Purchaser in this Agreement or in the other Transaction DocumentsDocuments or any agreements or understandings a Purchaser may have with any stockholder of the Company who is not an Affiliate of Purchaser or any knowing or intentional violations by a Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.7, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, members, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur (the “Indemnified Liabilities”) 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 or (b) any cause of action, suit or claim brought or made against such Purchaser Party by a third party (including for these purposes a derivative action instituted against a Purchaser, or any of their respective Affiliates, by any stockholder brought on behalf of the Company who is not an Affiliate Company) and arising out of such Purchaser or any other Purchaserresulting from (i) the execution, with respect to any delivery, performance or enforcement of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements other certificate, instrument or understandings document contemplated hereby or thereby, (ii) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Shares, or (iii) the status of such Purchaser may have with any such stockholder or any violations holder of the Shares as an investor in the Company. To the extent that the foregoing undertaking by the Purchaser Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of state or federal securities laws or any conduct by such Purchaser each of the Indemnified Liabilities which constitutes fraud, gross negligence, willful misconduct or malfeasance). is permissible under applicable law If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) Section 4.5 for any settlement by an Purchaser Party effected without the Company's ’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, judgment or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.6, the Company will indemnify and hold the Purchasers each Purchaser and their its directors, officers, shareholders, partners, employees and agents agents, each Person who controls such Purchaser within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below), court costs damages and reasonable attorneys' fees and costs of investigation documented expenses that any such Purchaser 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 (b) any action instituted against a Purchaserthe Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other PurchaserParty, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is solely based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser Party which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and writing provided that the failure to notify the Company under this Section 4.6 shall not relieve it from any liability that it may have to any Purchaser Party under this Section 4.6. The Company shall have the right to assume the defense thereof of any such action with counsel of its own choosingchoosing reasonably acceptable to the Purchaser Party, provided that the Company acknowledges its indemnification obligations hereunder. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (iy) for any settlement by an a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed, ; or (iiz) to the extent, but only to the extent that a loss, claim, damage, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification required by this Section 4.6 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law. If the indemnification provided for in this Section 4.6 is unavailable to a Purchaser Party with respect to any losses, claims, damages, actions, liabilities, costs or expenses referred to therein or is insufficient to hold such Purchaser Party harmless as contemplated therein, then the Company, in lieu of indemnifying such Purchaser Party, shall contribute to the amount paid or payable by such Purchaser Party as a result of such losses, claims, damages, actions, liabilities, costs or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Purchaser Party on the other hand from the sale of the Shares and Options Shares or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Purchaser Party on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities or claims, as well as any other relevant equitable considerations.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a PurchaserPurchaser Party, or any of their such Purchaser Party’s respective Affiliates, by any stockholder shareholder of the Company who is not an Affiliate of such Purchaser or any other PurchaserParty, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such the Purchaser's representation’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such the Purchaser may have with any such stockholder shareholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Surge Global Energy, Inc.)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the 16 transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Crestview Capital Master LLC)
Indemnification of Purchasers. Subject to The Company and the provisions of this Section 4.4, the Company Guarantors will jointly and severally indemnify and hold the Purchasers and their directorsharmless each Purchaser, its officers, shareholdersemployees, agents, partners, employees members, directors and agents its affiliates and each person, if any, who controls such Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a "Purchaser an “Indemnified Party") harmless from ”), against any and all losses, claims, damages or liabilities, obligationsjoint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages, costs and expenses, including all judgments, amounts paid damages or liabilities (or actions in settlements (subject to the provisions below), court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result respect thereof) arise out of or relating to (a) are based upon any breach untrue statement or alleged untrue statement of any material fact contained in any part of the representationsPreliminary Offering Memorandum or the Final Offering Memorandum, warranties, covenants in each case as amended or agreements made by the Company in this Agreement or (b) any action instituted against a Purchasersupplemented, or any Issuer Free Writing Communication (including with limitation, any Supplemental Marketing Material), or arise out of their respective Affiliatesor are based upon the omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein, by any stockholder in light of the Company who circumstances under which they were made, not misleading, and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is not an Affiliate a party thereto), whether threatened or commenced and in connection with the enforcement of such Purchaser or any other Purchaser, this provision with respect to any of the transactions contemplated by the Transaction Documents (unless above as such action is based upon a breach of such Purchaser's representationexpenses are incurred; provided, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraudhowever, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify that the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel Guarantors will not be liable in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except case 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 any such defense and to employ counsel (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser 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, judgment damage or liability arises out of or is attributable based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser Party's breach of through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Purchaser consists of the representations, warranties, covenants or agreements made by the Purchasers information described as such in this Agreement or in the other Transaction Documentssubsection (b) below.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.43.8, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "each Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 (b) any action instituted against a Purchaser, or any of their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Agreement. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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 choosingchoosing reasonably acceptable to the Purchaser. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser PartyPurchaser, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel and one local counsel. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's Purchaser’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers such Purchaser in this Agreement Agreement. The indemnification required by this Section 3.8 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to (x) any cause of action or similar right of any Purchaser against the other Transaction DocumentsCompany or others, and (y) any liabilities the Company may be subject to pursuant to law.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Vici Properties Inc.)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, the Company Borrowers will jointly and severally indemnify and hold the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 Borrowers in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company Borrowers who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representationrepresentations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company Borrowers in writing, and the Company Borrowers shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party 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 such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company Borrowers in writing, (ii) the Company has Borrowers have failed after a reasonable period of time to assume such defense and to employ counsel (assuming an obligation to so assume the defense) 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 either Borrower and the position of such Purchaser Party. The Company Borrowers will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Companyeach Borrower'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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Velocity Asset Management Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.9, the Company will indemnify and hold the Purchasers and their respective directors, officers, shareholders, managers, members, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representationrepresentations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of foreign, state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). The foregoing indemnities shall not apply to any Purchaser who is a principal of Shellco. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.8, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any material breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party; and provided further that the Company will not be required to pay the fees and expenses of more than one counsel for the Purchaser Parties. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction DocumentsDocuments or (iii) any loss, claim, damage or liability resulting from or relating to any agreements or understandings such Purchaser may have with any shareholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance.
Appears in 1 contract
Samples: Securities Purchase Agreement (Response Biomedical Corp)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by 28 the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Western Power & Equipment Corp)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.7, the Company will indemnify and hold the Purchasers and their Purchasers, directors, officers, shareholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, Purchaser or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representationrepresentations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Eagle Broadband Inc)
Indemnification of Purchasers. Subject to After the provisions of this Section 4.4Closing Date, the Company Seller, and its successors and assigns, will indemnify and hold the Purchasers harmless Purchaser, (and their Purchaser's officers, directors, officers, shareholders, partnersstockholders, employees and agents subsidiaries) (eachcollectively, a the "Purchaser PartyIndemnified Persons") harmless from any and all losses, liabilities, obligations, claims, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below), court from and against any loss, liability, claim, damage, expense (including reasonable costs of investigation and defense and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur expenses) incurred by the Indemnified Person, (a) as a result of or relating to (a) any breach of any of the representationsrepresentation or warranty, warranties, covenants covenant or agreements agreement made by the Company Seller in this Agreement, or any other certificate or document delivered by Seller pursuant to this Agreement to the extent of any Damage incurred by Purchaser after notice to Seller and failure by Seller to remedy or pay or otherwise contest such amount pursuant to the procedures of Section 10.8, (b) as a result of any action instituted against a Purchaserclaim for breach, misrepresentation or any of their respective Affiliates, warranty made by any stockholder Customer, Reseller, Employee or creditor of Seller related to the operation by Seller of the Company who is not an Affiliate of such Purchaser or any other PurchaserAudio Conferencing Business, with respect prior to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party except Closing Date to the extent that of any Damage incurred by Purchaser after notice to Seller and failure by Seller to remedy or pay or otherwise contest such amount pursuant to the procedures of Section 10.8; or in addition to the foregoing (iwith those items in Sub-Section (a) and (b) (collectively called the employment thereof has been specifically authorized "Damages"), and, (c) Seller will reimburse Purchaser from and against any loss, payment or expense (including reasonable costs of investigation and defense and reasonable attorneys' fees) incurred by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement Purchaser; (i) for any settlement amount that is paid after notice to Seller and failure to pay or contest such amount by an Purchaser Party effected without Seller to any creditor of Seller in excess of the Company's prior written consent, which shall not be unreasonably withheld or delayed, or amount of any individual Assumed Liability on Schedule 1.5; (ii) any expense or cost associated with the defense of any claim of any creditor or customer that has not been expressly disclosed, contested or assumed by Purchaser, (iii) any expense incurred by Purchaser, such as audit fees or legal fees, resulting directly from the transaction that was an expense to have been borne by the extent, but only Seller to the extent that a lossnot assumed by Purchaser and included in the Assumed Liabilities set forth on Schedule 1.5, claim, damage, judgment or liability is attributable to any Purchaser Party's breach and (iv) the payment of any tax, judgment, lien, debt or other obligation that was not expressly assumed by Purchaser to the extent of any Damage incurred by Purchaser after notice to Seller and failure by Seller to remedy or pay or otherwise contest such amount pursuant to the representationsprocedures of Section 10.8 (with collectively those items in sub-section (c) (i), warranties, covenants or agreements made by (ii) and (iii) collectively referred to as the Purchasers in this Agreement or in the other Transaction Documents"Payments").
Appears in 1 contract
Samples: Asset Purchase Agreement (Ilinc Communications Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such claimant stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Vistula Communications Services Inc)
Indemnification of Purchasers. (a) Subject to the provisions of this Section 4.44.8, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representationrepresentations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws (or any comparable jurisdictional laws for the British Virgin Islands) or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Lj International Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.4, the The Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser PartyPURCHASER PARTY") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any inaccuracy or breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or (b) any action instituted against a Purchaser, or any of their respective Affiliates, by any stockholder of in the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Documents. If any action proceeding shall be brought or asserted against any Purchaser Purchase Party in respect of which entitled to indemnity may be sought pursuant to this Agreementhereunder (an "Indemnified Party"), such Purchaser Indemnified Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that the failure of any Indemnified Party to give such notice shall not relieve the Company of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have prejudiced the Company; provided that the Indemnified Party shall be entitled to participate in the defense of such matter and to employ counsel of its own choosing. Any Purchaser Party shall have the right choosing and at its own expense to employ separate counsel in any such action and participate assist in the defense thereof, but the fees and expenses handling of such counsel shall be at the expense of such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser 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, judgment or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documentsmatter.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, the Company will indemnify and hold the Purchasers each Purchaser and their its directors, officers, shareholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other the Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such the Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such the Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such the Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such the Purchaser 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. Any Purchaser Party 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 such the Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such the Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers Purchaser in this Agreement or in the other Transaction Documents. 4.12 Reservation and Listing of Securities.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.7, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, members, direct and indirect investors, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action Proceeding instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action Proceeding shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser 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, judgment or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Isco International Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.8, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "Purchaser PartyPURCHASER PARTY") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representationrepresentations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents. Without limiting a Purchaser's other available remedies at law or equity, in no event shall the liability of the Company to a Purchaser hereunder be greater in amount than such Purchaser's Subscription Amount.
Appears in 1 contract
Samples: Securities Purchase Agreement (Secured Services Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.9, the Company will indemnify and hold the Purchasers Purchaser and their its members, managers, directors, officers, shareholdersstockholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a the Purchaser, or any of their its respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other the Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such the Purchaser's ’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such the Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such the Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers Purchaser in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (American International Ventures Inc /De/)
Indemnification of Purchasers. Subject to The Company and the provisions of this Section 4.4, the Company Guarantors will indemnify and hold the Purchasers and their directorsharmless each Purchaser, its officers, shareholdersemployees, agents, partners, employees members, directors and agents its affiliates and each person, if any, who controls such Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a "Purchaser an “Indemnified Party") harmless from ”), against any and all losses, claims, damages or liabilities, obligationsjoint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal, state or Canadian statutory law or regulation or otherwise, insofar as such losses, claims, damages, costs and expenses, including all judgments, amounts paid damages or liabilities (or actions in settlements (subject to the provisions below), court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result respect thereof) arise out of or relating to (a) are based upon any breach untrue statement or alleged untrue statement of any of material fact contained in the representationsPreliminary Offering Circular or the Final Offering Circular, warranties, covenants in each case as amended or agreements made by the Company in this Agreement or (b) any action instituted against a Purchasersupplemented, or any Issuer Free Writing Communication (including with limitation, any Supplemental Marketing Material), or the Exchange Act Reports, or arise out of their respective Affiliatesor are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein, by any stockholder in the light of the Company who circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating, preparing or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is not an Affiliate a party thereto), whether threatened or commenced and in connection with the enforcement of such Purchaser or any other Purchaser, this provision with respect to any of the transactions contemplated by the Transaction Documents (unless above as such action is based upon a breach of such Purchaser's representationexpenses are incurred; provided, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraudhowever, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify that the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel Guarantors will not be liable in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except case 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 any such defense and to employ counsel (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser 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, judgment damage or liability arises out of or is attributable based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Purchaser Party's breach of through the Representative specifically for use therein, it being understood and agreed that the only such information furnished by any Purchaser consists of the representations, warranties, covenants or agreements made by the Purchasers information described as such in this Agreement or in the other Transaction Documentssubsection (b) below.
Appears in 1 contract
Indemnification of Purchasers. Subject to The Company and the provisions of this Section 4.4, the Company Guarantors will indemnify and hold the Purchasers and their directorsharmless each Purchaser, its officers, shareholdersemployees, agents, partners, employees members, directors and agents its affiliates and each person, if any, who controls such Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a "Purchaser an “Indemnified Party") harmless from ”), against any and all losses, claims, damages or liabilities, obligationsjoint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages, costs and expenses, including all judgments, amounts paid damages or liabilities (or actions in settlements (subject to the provisions below), court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result respect thereof) arise out of or relating to (a) are based upon any breach untrue statement or alleged untrue statement of any of material fact contained in the representationsPreliminary Offering Circular or the Final Offering Circular, warranties, covenants in each case as amended or agreements made by the Company in this Agreement or (b) any action instituted against a Purchasersupplemented, or any Issuer Free Writing Communication (including with limitation, any Supplemental Marketing Material) or arise out of their respective Affiliatesor are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein, by any stockholder in the light of the Company who circumstances under which they were made, not misleading and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating, preparing or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is not an Affiliate a party thereto) whether threatened or commenced and in connection with the enforcement of such Purchaser or any other Purchaser, this provision with respect to any of the transactions contemplated by the Transaction Documents (unless above as such action is based upon a breach of such Purchaser's representationexpenses are incurred; provided, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraudhowever, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify that the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel Guarantors will not be liable in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except case 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 any such defense and to employ counsel (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser 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, judgment damage or liability arises out of or is attributable to any Purchaser Party's breach of based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the representations, warranties, covenants or agreements made Company by the Purchasers Representatives specifically for use therein, it being understood and agreed that the only such information consists of the information described as such in this Agreement or in the other Transaction Documentssubsection (b) below.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.7, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents this Agreement (unless such action is based upon a breach of such Purchaser's representation’s representations, warranties or covenants under the Transaction Documents this Agreement or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction DocumentsAgreement.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (including but not limited to, as applicable, any members, managers, limited partners or other similarly situated Persons related to the Purchaser even if not limited hereunder) (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.4, the Company will indemnify and hold the Purchasers and their directors, officers, shareholdersstockholders, members, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not a Purchaser or an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representationrepresentations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Datalogic International Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.46(h), the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (ai) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (bii) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasancelaws). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party except to the extent that (iA) the employment thereof has been specifically authorized by the Company in writing, ; (iiB) the Company has failed after a reasonable period of time to assume such defense and to employ counsel (assuming an obligation to so assume the defense) or (iiiC) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (iI) for any settlement by an a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld withheld, conditioned or delayed, ; or (iiII) to the extent, but only to the extent that a loss, claim, damage, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Samples: Osteologix, Inc.
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.12, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.5, the Company will indemnify and hold the Purchasers each Purchaser and their its directors, officers, shareholders, members, partners, employees employees, and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation (collectively, “Damages”) that any such Purchaser 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 or (b) any action instituted against a PurchaserPurchaser Party, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other PurchaserParty, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such a Purchaser's representation’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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 choosingchoosing reasonably acceptable to the Purchaser Party. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party, in which case, the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to (A) any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers such Purchaser Party in this Agreement or in the other Transaction Documents, (B) any violations by the Purchaser of state or federal securities laws or (C) any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance. Notwithstanding anything in this Agreement to the contrary, in no event shall the Company be liable to or be obligated to indemnify, any Purchaser or its directors, officers, shareholders, members, partners, employees, and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) for Damages in an amount in excess of such Purchaser’s Subscription Amount.
Appears in 1 contract
Samples: Securities Purchase Agreement (Pressure Biosciences Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all out-of-pocket losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not a Purchaser or an Affiliate of such Purchaser or any other a Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.45.14, the Company will indemnify and hold the Purchasers each Purchaser and their its directors, officers, shareholders, members, partners, employees and agents (each, a "Purchaser an “Indemnified Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below), court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Indemnified 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 or (b) any action instituted against a Purchaser, or an Indemnified Party in any of their respective Affiliates, capacity by any stockholder of the Company Person who is not an Affiliate affiliate of such Purchaser or any other PurchaserIndemnified Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representationIndemnified Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Indemnified Party may have with any such stockholder or any violations by the Purchaser such Indemnified Party of state or federal securities laws or any conduct by such Purchaser Indemnified Party which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Indemnified Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Indemnified 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. Any Purchaser Party 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 such Purchaser Party except choosing reasonably acceptable 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 (assuming an obligation to so assume the defense) 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 such Purchaser Indemnified Party. The Company will not be liable to any Purchaser Indemnified Party under this Agreement (iy) for any settlement by an Purchaser Indemnified Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed, ; or (iiz) to the extent, but only to the extent extent, that a loss, claim, damage, judgment damage or liability is attributable to any Purchaser Indemnified Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers such Indemnified Party in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.8, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers Purchaser in this Agreement or in the other Transaction Documents, or otherwise is the responsibility of the Purchaser or its agents.
Appears in 1 contract
Samples: Securities Purchase Agreement (LML Payment Systems Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser 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 extent, that a loss, claim, damage, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representationrepresentations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents, or arises from or any agreements or understandings such Purchaser may have with any other stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance. Reservation of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue Shares pursuant to this Agreement and Warrant Shares pursuant to any exercise of the Warrants.
Appears in 1 contract
Samples: Securities Purchase Agreement (Oxis International Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any material breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Force Protection Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon information provided by such Purchaser to the Company, a breach of such Purchaser's ’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Large Scale Biology Corp)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.8, the Company will indemnify and hold the Purchasers each Purchaser and their its directors, officers, shareholders, members, partners, employees and agents agents, each Person who controls such Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees of such controlling persons (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaserthe Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other PurchaserParty, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is solely based upon a breach of such Purchaser's representationPurchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder or any violations by the such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which constitutes is finally judicially determined to constitute fraud, gross negligence, negligence or willful misconduct or malfeasancemisconduct). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this AgreementSection 4.8, such Purchaser 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 choosingchoosing reasonably acceptable to the Purchaser Party. Any Purchaser Party 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 such Purchaser Party except to the extent that (ix) the employment thereof has been specifically authorized by the Company in writing, (iiy) the Company has failed after a reasonable period of time to assume such defense and to employ counsel (assuming an obligation to so assume the defense) or (iiiz) in such action there is, in the reasonable opinion of such separate counselcounsel for the Company, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (i1) for any settlement by an a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed, ; or (ii2) to the extent, but only to the extent that a loss, claim, damage, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification required by this Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.46(f), the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (ai) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (bii) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasancelaws). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party except to the extent that (iA) the employment thereof has been specifically authorized by the Company in writing, (iiB) the Company has failed after a reasonable period of time to assume such defense and to employ counsel (assuming an obligation to so assume the defense) counsel, or (iiiC) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (iI) for any settlement by an a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld withheld, conditioned or delayed, ; or (iiII) to the extent, but only to the extent that a loss, claim, damage, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Samples: Subscription Agreement (Innovive Pharmaceuticals, Inc.)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.10, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any material breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or (b) any action instituted against a Purchaser, or any of their respective Affiliates, by any stockholder of in the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Documents. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) or (iii) in the named parties to any such action there isProceeding (including any impleaded parties) include both such Purchaser Party and the Company, in the reasonable opinion of and such separate counsel, Purchaser Party shall reasonably believe that a material conflict on any material issue between of interest is likely to exist if the position same counsel were to represent such Purchaser Party and the Company (in which case, if such Purchaser Party notifies the Company in writing that it elects to employ separate counsel at the expense of the Company, the reasonable fees and expenses of one separate counsel shall be at the expense of the Company). The Company and the position shall not be liable for any settlement of any such Purchaser PartyProceeding effected without its written consent, which consent shall not be unreasonably withheld. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is primarily attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents. The Company shall not, without the prior written consent of the Purchaser Party (which consent shall not be unreasonably withheld or delayed), effect any settlement of any pending proceeding in respect of which any Purchaser Party is a party, unless such settlement includes an unconditional release of such Purchaser Party from all liability on claims that are the subject matter of such proceeding.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations or alleged violation by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party except to the extent that (i) the employment thereof and the Company’s payment of such fees and expenses 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents. Reservation of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue Shares pursuant to this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (BJs RESTAURANTS INC)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.8, the Company will indemnify and hold each Purchaser and each Person who controls such Purchaser (within the Purchasers meaning of Section 15 of the Securities Act and their directors, officers, shareholders, partners, employees and agents (eachSection 20 of the Exchange Act)(each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaserthe Purchaser Parties in any capacity, or any of them or their respective Affiliates, by (i) any stockholder of the Company who is not an Affiliate of such Purchaser Party or (ii) any other Purchaserthird party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is solely based upon a material breach of such Purchaser's representationPurchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder or any violations by the such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which constitutes is finally judicially determined to constitute fraud, gross negligence, negligence or willful misconduct or malfeasancemisconduct). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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 choosingchoosing reasonably acceptable to the Purchaser Party. Any Purchaser Party 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 such Purchaser Party except to the extent that (ix) the employment thereof has been specifically authorized by the Company in writing, (iiy) the Company has failed after a reasonable period of time to assume such defense and to employ counsel (assuming an obligation to so assume the defense) or (iiiz) 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 such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (i1) for any settlement by an a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed, ; or (ii2) to the extent, but only to the extent that a loss, claim, damage, judgment damage or liability is primarily attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification required by this Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its it s own choosing. Any Purchaser Party 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 such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) that the Company has failed after a reasonable period of time to assume such defense and to employ counsel (assuming an obligation to so assume the defense) 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 company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Mexoro Minerals LTD)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, each party (the Company "INDEMNIFYING Party") will indemnify and hold the Purchasers other parties and their directors, officers, shareholders, partners, employees and agents (each, a an "Purchaser PartyINDEMNIFIED PARTY") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Indemnified 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 Indemnifying Party in this Agreement or (b) any action instituted against a Purchaser, or any of their respective Affiliates, by any stockholder of in the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Documents. If any action shall be brought against any Purchaser Indemnified Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Indemnified Party shall promptly notify the Company Indemnifying Party in writing, and the Company Indemnifying Party shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Indemnified Party 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 such Purchaser Indemnified Party except to the extent that (i) the employment thereof has been specifically authorized by the Company Indemnifying Party in writing, (ii) the Company Indemnifying Party has failed after a reasonable period of time to assume such defense and to employ counsel (assuming an obligation to so assume the defense) 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 Indemnifying Party and the position of such Purchaser Indemnified Party. The Company Indemnifying Party will not be liable to any Purchaser Indemnified Party under this Agreement (i) for any settlement by an Purchaser Indemnified Party effected without the CompanyIndemnifying Party'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, judgment damage or liability is attributable to any Purchaser Indemnified Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents. In no event shall the liability of any Purchaser hereunder be greater in amount than the dollar amount of the net proceeds received by such Purchaser upon the sale of the Securities.
Appears in 1 contract
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "Purchaser PartyPURCHASER PARTY") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representationrepresentations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser 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, judgment damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Intraop Medical Corp)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.9, the Company will indemnify and hold the Purchasers Purchaser and their its directors, officers, shareholdersstockholders, members, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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, the Registration Rights Agreement and the Certificate or (b) any action instituted against a the Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such the Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such the Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers Purchaser in this Agreement or in the other Transaction DocumentsRegistration Rights Agreement. The Company shall not approve the settlement of any claims against a Purchaser Party without the written consent of the Purchaser Party, unless such settlement holds such Purchaser Party harmless and releases the Purchaser Party from all claims.
Appears in 1 contract
Samples: Securities Purchase Agreement (Cambridge Heart Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.4, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below), court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser 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 (b) any action instituted against a Purchaser, or any of their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless Unless such action is based upon a breach of such Purchaser's ’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)malfeasance (collectively, “Non-Indemnifiable Claims”) and subject to the provisions of this Section 4.5, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees and agents (each a “Purchaser 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 that any such Purchaser Party may suffer or incur as a result of or relating to any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or any violations by the Company of state or federal securities laws. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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, which counsel shall be reasonably acceptable to such Purchaser Party. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material 17 issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's breach of ’s Non-Indemnifiable Claim. The Company shall not settle any action without the prior written consent of the representationsrelevant Purchaser Party, warrantieswhich consent shall not be unreasonably withheld, covenants delayed or agreements made by the Purchasers in this Agreement or in the other Transaction Documentsconditioned, unless such settlement includes an unconditional release of such Purchaser Party from all liability and does not otherwise impose any obligations on such Purchaser Party.
Appears in 1 contract
Samples: Securities Purchase Agreement (Panamerican Bancorp)
Indemnification of Purchasers. Subject to the provisions of this Section 4.4, the The Company will indemnify and hold the Purchasers and their directors, trustees, officers, shareholders, partners, employees and agents (each, a "Purchaser PartyPURCHASER PARTY") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur ("LOSSES") as a result of or relating to to: (a) any misrepresentation, breach or inaccuracy, or any allegation by a third party that, if true, would constitute a breach or inaccuracy, of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or (b) any action instituted against a Purchaser, or any of their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser 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. Any Purchaser Party 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 such Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser 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, judgment or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents; or (b) any cause of action, suit or claim brought or made against such Purchaser Party and arising solely out of or solely resulting from the execution, delivery, performance or enforcement of this Agreement or any of the other Transaction Documents and without causation by any other activity, obligation, condition or liability pertaining to such Purchaser. The Company shall not be liable for any indemnity pursuant to this Section 4.8 until the aggregate of all Losses incurred by the Purchaser Parties as a result of such misrepresentation, breach, inaccuracy, cause of action, suit or claim exceeds $50,000, at which time the Company shall be liable to indemnify the Purchaser Parties for the full amount of such Losses relating back to dollar one. The Company will reimburse such Purchaser for its reasonable legal and other expenses (including the cost of any investigation, preparation and travel in connection therewith) incurred in connection therewith, as such expenses are incurred upon presentation of reasonably evidence thereof. The Purchaser Parties shall notify the Company in writing promptly upon becoming aware of any fact or circumstance which might give rise to indemnification pursuant to this Section 4.8. The Company shall be entitled to control the defense of any action for which any Purchaser Party claims or may claim indemnification pursuant to this Section 4.8, with counsel of the Company's own choosing. No Purchaser Party shall settle or compromise any action for which it has claimed indemnification pursuant to this Section 4.8 without the prior written consent of the Company.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ultimate Software Group Inc)
Indemnification of Purchasers. Subject to the provisions of this Section 4.44.11, the Company will indemnify and hold each of the Purchasers and their directors, officers, shareholders, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all third party losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements (subject to the provisions below)settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser 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 or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such the Purchaser may have with any such stockholder or any violations by the such Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such the Purchaser 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. Any Purchaser Party 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 such the Purchaser Party 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 (assuming an obligation to so assume the defense) 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 such the Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by an a Purchaser Party effected without the Company's ’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, judgment damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction DocumentsDocuments or any violations by the Purchaser of state or federal securities laws or any conduct by the Purchasers which constitutes fraud, gross negligence, willful misconduct or malfeasance.
Appears in 1 contract
Samples: Securities Purchase Agreement (Passport Restaurants, Inc.)
