Indemnification of the Investor. In consideration of the Investor’s execution and delivery of this Agreement and acquiring the Securities hereunder and in addition to all of the Company’s other obligations under the Transaction Documents to which it is a party, subject to the provisions of this Section 9.1, the Company shall indemnify and hold harmless the Investor, each of its directors, officers, stockholders, members, partners, employees, representatives, agents and advisors (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title), each Person, if any, who controls the Investor (within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act), and the respective directors, officers, stockholders, members, partners, employees, representatives, agents and advisors (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title) of such controlling Persons (each, an “Investor Party”), each of which shall be an express third-party beneficiary of this Article IX, from and against actual losses, liabilities, obligations, claims, contingencies, damages, costs and expenses (including all judgments, amounts paid in settlement (to the extent that any such settlement has been pre-approved in writing by the Company), court costs, reasonable attorneys’ fees and costs of defense and investigation) (collectively, “Damages”) that an Investor Party has suffered or incurred resulting directly and primarily from any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement, the Registration Rights Agreement or in the other Transaction Documents to which it is a party; provided, however, that the foregoing indemnity shall not apply to any Damages to the extent, but only to the extent, that such Damages resulted directly and primarily from a breach of any of the Investor’s representations, warranties, covenants or agreements contained in this Agreement or the Registration Rights Agreement. An Investor Party’s right to indemnification or other remedies based upon the representations, warranties, covenants and agreements of the Company set forth in the Transaction Documents shall not in any way be affected by any investigation or knowledge of such Investor Party. Such representations, warranties, covenants and agreements shall not be affected or deemed waived by reason of the fact that an Investor Party knew or should have known that any representation or warranty might be inaccurate or that the Company failed to comply with any agreement or covenant. Any investigation by such Investor Party shall be for its own protection only and shall not affect or impair any right or remedy hereunder. Investor herby represents to the Company that it is not aware as of the date hereof of any breach by the Company hereunder. To the extent that the foregoing undertakings by the Company set forth in this Section 9.1 may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Damages which is permissible under applicable law, provided that in no event shall the Investor be obligated to contribute any amount in excess of the aggregate proceeds from the resale of Shares less the aggregate VWAP Purchase Price received under this Agreement.
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Indemnification of the Investor. In consideration of the Investor’s execution and delivery of this Agreement and acquiring the Securities hereunder and in addition to all of the Company’s other obligations under the Transaction Documents to which it is a party, subject Subject to the provisions of this Section 9.14.2, the Company shall will indemnify and hold harmless the InvestorInvestor and its Affiliates, each of its directors, officers, stockholders, members, partners, employees, representatives, employees and agents and advisors (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the a lack of such title or any other title), including the Investor Designee, each Person, if any, Person who controls the Investor (within the meaning of Section 15 of the Securities Act or and Section 20(a) 20 of the Exchange Act), and the respective directors, officers, stockholders, agents, members, partners, employees, representatives, agents and advisors partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the a lack of such title or any other title) of such controlling Persons persons (each, an “Investor Party”), each of which shall be an express third-party beneficiary of this Article IX, ) harmless from any and against actual all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses (expenses, including all judgments, amounts paid in settlement (to the extent that any such settlement has been pre-approved in writing by the Company)settlements, court costs, costs and reasonable attorneys’ fees and costs of defense and investigation) (collectively, “Damages”) investigation that an any Investor Party has suffered may suffer or incurred resulting directly and primarily from incur as a result of or relating to: (a) the Exchange; (b) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement, the Registration Rights Exchange Agreement or in the other Transaction Documents Agreements; (c) the execution of this Exchange Agreement or any of the other Transaction Agreements or any agreement or instrument contemplated hereby or thereby, the performance by the Company and the Trustee (as applicable) hereto and to which it the other Transaction Agreements of their respective obligations hereunder or thereunder and the consummation of the transactions contemplated hereby or thereby; (d) the non-payment of amounts payable under the New Notes or the use or proposed use of the proceeds from the Exchange by the Company; or (e) any actual or prospective claim, litigation, investigation, proceeding or other action instituted in any capacity, whether based on contract, tort or any other theory, whether brought by a third party or by any party hereto, and regardless of whether any Investor Party is a partyparty thereto, with respect to the transactions contemplated by the Transaction Agreements, the Existing Notes or the Existing Indenture (except to the extent such action is based upon a breach of such Investor Party’s representations, warranties or covenants under this Exchange Agreement or any agreements or understandings such Investor Party may have with any such shareholder or any violations by such Investor Party of state or federal securities laws or any conduct by such Investor Party which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Investor Party in respect of which indemnity may be sought pursuant to this Exchange Agreement, such Investor Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Investor Party. Any Investor 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 Investor 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 (not to exceed 90 days) or (iii) in such action there is a conflict or potential conflict on any material issue between the position of the Company and the position of such Investor Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel and local counsel and shall pay such fees and expenses as incurred. The Company will not be liable to any Investor Party under this Exchange Agreement (y) for any settlement by an Investor Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; provided, however, that if at any time an Investor Party shall have requested the foregoing indemnity Company to reimburse such Investor Party for fees and expenses of counsel as contemplated by this Section 4.2, the Company agrees that it shall be liable for any settlement of any proceeding effected without their written consent if (i) such settlement is entered into more than 30 days after receipt by such Investor Party of the aforesaid request, (ii) the Company shall have received notice of the terms of such settlement at least ten (10) days prior to such settlement being entered into, and (iii) the Company shall not apply to any Damages have reimbursed the Investor Party in accordance with such request; or (z) to the extent, but only to the extentextent that a loss, that such Damages resulted directly and primarily from a claim, damage or liability is attributable to any Investor Party’s breach of any of the Investor’s representations, warranties, covenants or agreements contained in this Agreement or the Registration Rights Agreement. An Investor Party’s right to indemnification or other remedies based upon the representations, warranties, covenants and agreements of the Company set forth in the Transaction Documents shall not in any way be affected by any investigation or knowledge of such Investor Party. Such representations, warranties, covenants and agreements shall not be affected or deemed waived by reason of the fact that an Investor Party knew or should have known that any representation or warranty might be inaccurate or that the Company failed to comply with any agreement or covenant. Any investigation made by such Investor Party in this Exchange Agreement or any violations by such Investor Party of state or federal securities laws or any conduct by such Investor Party which constitutes fraud, gross negligence, willful misconduct or malfeasance. The Company shall not, without the prior written consent of the Investor, not to be unreasonably withheld, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any Investor Party is or could have been a party and indemnity was or could have been sought hereunder by such Investor Party, unless such settlement, compromise or consent (i) includes an unconditional release of such Investor Party from all liability on claims that are the subject matter of such action, suit or proceeding and (ii) does not include any statements as to or any findings of fault, culpability or failure to act by or on behalf of any Investor Party. The indemnification required by this Section 4.2 shall be for its own protection only 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 not affect be in addition to any cause of action or impair similar right of any right Investor Party against the Company or remedy hereunderothers and any liabilities the Company may be subject to pursuant to law. Investor herby represents Notwithstanding anything to the Company that it is not aware as of the date hereof of any breach by the Company hereunder. To the extent that the foregoing undertakings by the Company set forth contrary in this Section 9.1 may be unenforceable for any reasonExchange Agreement or the New Indenture, the Company shall make the maximum contribution to the payment and satisfaction of each of the Damages which is permissible under applicable law, provided that in no event shall the Company have any liability to any Investor be obligated to contribute Party under this Section 4.2 or otherwise for any amount in excess liability of any Investor Party arising under Section 16 of the aggregate proceeds from the resale of Shares less the aggregate VWAP Purchase Price received under this AgreementExchange Act.
Appears in 1 contract
Samples: Notes Exchange Agreement (Keryx Biopharmaceuticals Inc)
Indemnification of the Investor. In consideration of the Investor’s execution and delivery of this Agreement and acquiring the Securities hereunder and in addition to all of the Company’s other obligations under the Transaction Documents to which it is a party, subject Subject to the provisions of this Section 9.15.10, the Company shall will to the extent permitted by applicable Laws and the Articles of Association indemnify and hold harmless the Investor, each of Investor and its directors, officers, stockholdersshareholders, members, partners, employees, representatives, employees and agents and advisors (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the a lack of such title or any other title), each Person, if any, Person who controls the Investor (within the meaning of Section 15 of the Securities Act or and Section 20(a) 20 of the Exchange Act), and the respective directors, officers, stockholdersshareholders, agents, members, partners, employees, representatives, agents and advisors partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the a lack of such title or any other title) of such controlling Persons persons (each, an a “Investor Party”), each of which shall be an express third-party beneficiary of this Article IX, ) harmless from any and against actual all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses (other than by reason of such indemnified person’s own dishonesty, wilful default or fraud), including all judgments, amounts paid in settlement (to the extent that any such settlement has been pre-approved in writing by the Company)settlements, court costs, costs and reasonable attorneys’ fees and costs of investigation and defense and investigation) (collectively, “DamagesLosses”) that an any such Investor Party has suffered may suffer or incurred resulting directly and primarily from 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 or in the other Transaction Documents, (b) any action instituted against the Investor Parties in any capacity, or any of them or their respective Affiliates, by any shareholder of the Company who is not an Affiliate of such Investor 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 Investor Party’s of any agreements or understandings such Investor Party may have with any such shareholder), (c) any misrepresentation made by the Company in any Transaction Document or in any SEC Document, (d) any omission to state any material fact necessary in order to make the statements made in any SEC Document, in light of the circumstances under which it they were made, not misleading, or (e) any Proceeding before or by any court, public board, government agency, self-regulatory organization or body based upon, or resulting from the execution, delivery, performance or enforcement of any of the Transaction Documents or the consummation of the transactions contemplated thereby, and whether or not an Investor Party is party thereto by claim, counterclaim, crossclaim, as a party; provideddefendant or otherwise, howeveror if such Proceeding is based upon, or results from, any of the items set forth in clauses (a) through (e) above. If any action shall be brought against any Investor Party in respect of which indemnity may be sought pursuant to this Agreement, such Investor Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Investor Party. Any Investor 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 Investor Party except to the extent that (i) the foregoing indemnity employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of such Investor 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 Investor Party under this Agreement (y) for any settlement by an Investor Party effected without the Company’s prior written consent, which shall not apply to any Damages be unreasonably withheld or delayed; or (z) to the extent, but only to the extentextent that a loss, that such Damages resulted directly and primarily from a claim, damage or liability is attributable to any Investor Party’s breach of any of the Investor’s representations, warranties, covenants or agreements contained made by such Investor Party in this Agreement or in the Registration Rights Agreementother Transaction Documents. An Investor Party’s right to The indemnification or other remedies based upon the representations, warranties, covenants and agreements required by this Section 5.10 shall be made by periodic payments of the Company set forth in amount thereof during the Transaction Documents shall not in any way be affected by any course of the investigation or knowledge defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of such Investor Party. Such representations, warranties, covenants and agreements shall not be affected action or deemed waived by reason similar right of the fact that an any Investor Party knew or should have known that any representation or warranty might be inaccurate or that against the Company failed to comply with or others and any agreement or covenant. Any investigation by such Investor Party shall be for its own protection only and shall not affect or impair any right or remedy hereunder. Investor herby represents to liabilities the Company that it is not aware as may be subject to pursuant to law. The provisions of the date hereof of any breach by the Company hereunder. To the extent that the foregoing undertakings by the Company set forth in this Section 9.1 may be unenforceable for any reason, 5.10 shall survive the Company shall make the maximum contribution to the payment and satisfaction termination or expiration of each of the Damages which is permissible under applicable law, provided that in no event shall the Investor be obligated to contribute any amount in excess of the aggregate proceeds from the resale of Shares less the aggregate VWAP Purchase Price received under this Agreement.
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Indemnification of the Investor. In consideration of the Investor’s execution and delivery of this Agreement and acquiring the Securities hereunder and in addition The Company agrees to all of the Company’s other obligations under the Transaction Documents to which it is a party, subject to the provisions of this Section 9.1, the Company shall indemnify and hold harmless the Investor, each of the Investors and its directorsowners, officers, stockholdersdirectors, managers, members, partnersagents, employeesadvisors, representatives, agents successors and advisors (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title), each Person, if any, who controls the Investor (within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act), and the respective directors, officers, stockholders, members, partners, employees, representatives, agents and advisors (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title) of such controlling Persons assigns (each, an “Investor Indemnified Party”), each of which shall be an express third-party beneficiary of this Article IX, from and against actual any losses, liabilities, obligations, claims, contingenciesdamages or liabilities, damagesjoint or several, costs and expenses to which such Indemnified Party may become subject, under the Securities Act or otherwise (including all judgments, amounts paid in settlement (to the extent that of any litigation if such settlement has been pre-approved in writing by is effected with the written consent of the Company, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, including the information deemed to be a part of the Registration Statement at the time of effectiveness and at any subsequent time pursuant to Rules 430A and 430B of the Rules and Regulations promulgated under the Securities Act, if applicable, any Preliminary Prospectus, 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 Prospectus), court costsany Issuer Free Writing Prospectus or in any materials or information provided to investors by, reasonable attorneys’ fees and costs of defense and investigation) (collectivelyor with the approval of, “Damages”) that an Investor Party has suffered or incurred resulting directly and primarily from any breach of any the Company in connection with the marketing of the representationsoffering of the Common Stock (“Marketing Materials”), warranties, covenants including any roadshow or agreements investor presentations made to investors by the Company (whether in this Agreementperson or electronically) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, the Registration Rights Agreement and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by it in connection with investigating or defending against such loss, claim, damage, liability or action; or (ii) in whole or in part upon any inaccuracy in the other Transaction Documents representations and warranties of the Company contained herein; or (iii) in whole or in part upon any failure of the Company to which it is a partyperform their respective obligations hereunder or under law; provided, however, that the foregoing indemnity shall not apply to any Damages to the extent, but only to the extent, that such Damages resulted directly and primarily from a breach of any of the Investor’s representations, warranties, covenants or agreements contained in this Agreement or the Registration Rights Agreement. An Investor Party’s right to indemnification or other remedies based upon the representations, warranties, covenants and agreements of the Company set forth in the Transaction Documents shall not in any way be affected by any investigation or knowledge of such Investor Party. Such representations, warranties, covenants and agreements shall not be affected or deemed waived by reason of liable in any such case to the fact that an Investor Party knew or should have known extent that any representation such loss, claim, damage, liability or warranty might be inaccurate action arises out of or that is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Company failed to comply Prospectus Supplement in reliance upon and in conformity with any agreement or covenant. Any investigation by such Investor Party shall be for its own protection only and shall not affect or impair any right or remedy hereunder. Investor herby represents written information furnished to the Company that it is not aware by the Indemnified Party, specifically for use in the preparation thereof. In addition to their other obligations under this Section 9(a), the Company agrees that, as an interim measure during the pendency of any claim, action, investigation, inquiry or other proceeding brought or threatened against the Indemnified Party and which arises out of or based upon any statement or omission, or any alleged statement or omission, described in this Section 9(a), they will reimburse each Indemnified Party on a monthly basis for all reasonable legal fees or other expenses incurred in connection with investigating or defending any such claim, action, investigation, inquiry or other proceeding, notwithstanding the absence of a judicial determination as to the propriety and enforceability of the date hereof Company’s obligation to reimburse such Indemnified Party for such expenses and the possibility that such payments might later be held to have been improper by a court of any breach by the Company hereundercompetent jurisdiction. To the extent that any such interim reimbursement payment is so held to have been improper, each Indemnified Party that received such payment shall promptly return it to the foregoing undertakings party or parties that made such payment, together with interest, determined on the basis of the prime rate (or other commercial lending rate for borrowers of the highest credit standing) announced from time to time by The Wall Street Journal (the “Prime Rate”). Any such interim reimbursement payments which are not made to an Indemnified Party within 30 days of a request for reimbursement shall bear interest at the Prime Rate from the date of such request. This indemnity agreement shall be in addition to any liabilities which the Company set forth in this Section 9.1 may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Damages which is permissible under applicable law, provided that in no event shall the Investor be obligated to contribute any amount in excess of the aggregate proceeds from the resale of Shares less the aggregate VWAP Purchase Price received under this Agreementotherwise have.
Appears in 1 contract
Indemnification of the Investor. In consideration of the Investor’s execution and delivery of this Agreement and acquiring the Securities hereunder and in addition to all of the Company’s other obligations under the Transaction Documents to which it is a party, subject Subject to the provisions of this Section 9.14.1, the Company shall will indemnify and hold harmless the InvestorInvestor and its Affiliates, each of its directors, officers, stockholders, members, partners, employees, representatives, employees and agents and advisors (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the a lack of such title or any other title), each Person, if any, Person who controls the Investor (within the meaning of Section 15 of the Securities Act or and Section 20(a) 20 of the Exchange Act), and the respective directors, officers, stockholders, agents, members, partners, employees, representatives, agents and advisors partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the a lack of such title or any other title) of such controlling Persons persons (each, an “Investor Party”), each of which shall be an express third-party beneficiary of this Article IX, ) harmless from any and against actual all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses (expenses, including all judgments, amounts paid in settlement (to the extent that any such settlement has been pre-approved in writing by the Company)settlements, court costs, reasonable attorneys’ fees and costs of investigation (but excluding any taxes other than those for which the Company is responsible pursuant to Section 5.2 hereof) that any Investor Party may suffer or incur as a result of or relating to: (a) the Conversion Transactions; (b) any breach of any of the representations, warranties, covenants or agreements in this Conversion Agreement; (c) the execution of this Conversion Agreement or any agreement or instrument contemplated hereby or thereby, the performance by the Company of its obligations hereunder and the consummation of the transactions contemplated hereby; or (d) any actual or prospective claim, litigation, investigation, proceeding or other action instituted in any capacity, whether based on contract, tort or any other theory, whether brought by a third party or by any party hereto, and regardless of whether any Investor Party is a party thereto, with respect to the transactions contemplated by this Conversion Agreement, the Existing Notes or the Indenture (except to the extent such action is based upon a breach of such Investor Party’s representations, warranties or covenants under this Conversion Agreement or any agreements or understandings such Investor Party may have with any such shareholder or any violations by such Investor Party of state or federal securities laws or any conduct by such Investor Party which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Investor Party in respect of which indemnity may be sought pursuant to this Conversion Agreement, such Investor Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Investor Party. Any Investor 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 Investor 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 investigationto employ counsel (not to exceed 90 days) or (collectivelyiii) in such action there is a conflict or potential conflict on any material issue between the position of the Company and the position of such Investor Party, “Damages”in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel and local counsel and shall pay such fees and expenses as incurred. The Company will not be liable to any Investor Party under this Conversion Agreement (y) that for any settlement by an Investor Party has suffered effected without the Company’s prior written consent, which shall not be unreasonably withheld or incurred resulting directly delayed; provided, however, that if at any time an Investor Party shall have requested the Company to reimburse such Investor Party for fees and primarily from expenses of counsel as contemplated by this Section 4.2, the Company agrees that it shall be liable for any settlement of any proceeding effected without their written consent if (i) such settlement is entered into more than 30 days after receipt by such Investor Party of the aforesaid request, (ii) the Company shall have received notice of the terms of such settlement at least ten (10) days prior to such settlement being entered into, and (iii) the Company shall not have reimbursed the Investor Party in accordance with such request; or (z) to the extent, but only to the extent, that a loss, claim, damage or liability is attributable to any Investor Party’s breach of any of the representations, warranties, covenants or agreements made by the Company such Investor Party in this Agreement, the Registration Rights Conversion Agreement or in the other Transaction Documents to which it is a party; provided, however, that the foregoing indemnity shall not apply to any Damages to the extent, but only to the extent, that such Damages resulted directly and primarily from a breach of any of the Investor’s representations, warranties, covenants or agreements contained in this Agreement or the Registration Rights Agreement. An Investor Party’s right to indemnification or other remedies based upon the representations, warranties, covenants and agreements of the Company set forth in the Transaction Documents shall not in any way be affected by any investigation or knowledge of such Investor Party. Such representations, warranties, covenants and agreements shall not be affected or deemed waived by reason of the fact that an Investor Party knew or should have known that any representation or warranty might be inaccurate or that the Company failed to comply with any agreement or covenant. Any investigation violations by such Investor Party of state or federal securities laws or any conduct by such Investor Party which constitutes fraud, gross negligence, willful misconduct or malfeasance. The Company shall not, without the prior written consent of the Investor, not to be unreasonably withheld, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any Investor Party is or could have been a party and indemnity was or could have been sought hereunder by such Investor Party, unless such settlement, compromise or consent (i) includes an unconditional release of such Investor Party from all liability on claims that are the subject matter of such action, suit or proceeding and (ii) does not include any statements as to or any findings of fault, culpability or failure to act by or on behalf of any Investor Party. The indemnification required by this Section 4.1 shall be for its own protection only 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 not affect be in addition to any cause of action or impair similar right of any right Investor Party against the Company or remedy hereunderothers and any liabilities the Company may be subject to pursuant to law. Investor herby represents Notwithstanding anything to the Company that it is not aware as of the date hereof of any breach by the Company hereunder. To the extent that the foregoing undertakings by the Company set forth contrary in this Section 9.1 may be unenforceable for any reasonConversion Agreement, the Company shall make the maximum contribution to the payment and satisfaction of each of the Damages which is permissible under applicable law, provided that in no event shall the Company have any liability to any Investor be obligated to contribute Party under this Section 4.1 or otherwise for any amount in excess liability of any Investor Party arising under Section 16 of the aggregate proceeds from the resale of Shares less the aggregate VWAP Purchase Price received under this AgreementExchange Act.
Appears in 1 contract
Samples: Notes Conversion Agreement (Keryx Biopharmaceuticals Inc)
Indemnification of the Investor. In consideration of the Investor’s execution and delivery of this Agreement and acquiring the Securities hereunder and in addition to all of the Company’s other obligations under the Transaction Documents to which it is a party, subject to the provisions of this Section 9.1, the Company shall indemnify and hold harmless the Investor, each of its directors, officers, stockholders, members, partners, employees, representatives, agents and advisors (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title), each Person, if any, who controls the Investor (within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act), and the respective directors, officers, stockholders, members, partners, employees, representatives, agents and advisors (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title) of such controlling Persons (each, an “Investor Party”), each of which shall be an express third-party beneficiary of this Article IX, from and against actual all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses (including all judgments, amounts paid in settlement (to the extent that any such settlement has been pre-approved in writing by the Company)settlement, court costs, reasonable attorneys’ fees and costs of defense and investigation) (collectively, “Damages”) that an any Investor Party has suffered may suffer or incurred resulting directly and primarily from 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, the Registration Rights Agreement or in the other Transaction Documents to which it is a party; provided, however, that the foregoing indemnity shall not apply to any Damages to the extent, but only to the extent, that such Damages resulted directly and primarily from a breach of any of the Investor’s representations, warranties, covenants or agreements contained in this Agreement or the Registration Rights Agreement. An Investor Party’s right to indemnification or other remedies based upon the representations, warranties, covenants and agreements of the Company set forth in the Transaction Documents shall not in any way be affected by any investigation or knowledge of such Investor Party. Such representations, warranties, covenants and agreements shall not be affected or deemed waived by reason of the fact that an Investor Party knew or should have known that any representation or warranty might be inaccurate or that the Company failed to comply with any agreement or covenant. Any investigation by such Investor Party shall be for its own protection only and shall not affect or impair any right or remedy hereunder. Investor herby represents to the Company that it is not aware as of the date hereof of any breach by the Company hereunder. To the extent that the foregoing undertakings by the Company set forth in this Section 9.1 may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Damages which is permissible under applicable law, provided that in no event shall the Investor be obligated to contribute any amount in excess of the aggregate proceeds from the resale of Shares less the aggregate VWAP Purchase Price received fees it actually receives under this Agreement.
Appears in 1 contract
Indemnification of the Investor. In consideration of the Investor’s execution and delivery of this Agreement and acquiring the Securities hereunder and in addition The Company agrees to all of the Company’s other obligations under the Transaction Documents to which it is a party, subject to the provisions of this Section 9.1, the Company shall indemnify and hold harmless the Investor, each of the Investors and its directorsowners, officers, stockholdersdirectors, managers, members, partnersagents, employeesadvisors, representatives, agents successors and advisors (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title), each Person, if any, who controls the Investor (within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act), and the respective directors, officers, stockholders, members, partners, employees, representatives, agents and advisors (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title) of such controlling Persons assigns (each, an “Investor Indemnified Party”), each of which shall be an express third-party beneficiary of this Article IX, from and against actual any losses, liabilities, obligations, claims, contingenciesdamages or liabilities, damagesjoint or several, costs and expenses to which such Indemnified Party may become subject, under the Securities Act or otherwise (including all judgments, amounts paid in settlement (to the extent that of any litigation if such settlement has been pre-approved in writing by is effected with the written consent of the Company, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, including the information deemed to be a part of the Registration Statement at the time of effectiveness and at any subsequent time pursuant to Rules 430A and 430B of the Rules and Regulations promulgated under the Securities Act, if applicable, any Preliminary Prospectus, 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 Prospectus), court costsany Issuer Free Writing Prospectus or in any materials or information provided to investors by, reasonable attorneys’ fees and costs of defense and investigation) (collectivelyor with the approval of, “Damages”) that an Investor Party has suffered or incurred resulting directly and primarily from any breach of any the Company in connection with the marketing of the representationsoffering of the Common Stock (“Marketing Materials”), warranties, covenants including any roadshow or agreements investor presentations made to investors by the Company (whether in this Agreementperson or electronically) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, the Registration Rights Agreement and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by it in connection with investigating or defending against such loss, claim, damage, liability or action; or (ii) in whole or in part upon any inaccuracy in the other Transaction Documents representations and warranties of the Company contained herein; or (iii) in whole or in part upon any failure of the Company to which it is a partyperform their respective obligations hereunder or under law; provided, however, that the foregoing indemnity shall not apply to any Damages to the extent, but only to the extent, that such Damages resulted directly and primarily from a breach of any of the Investor’s representations, warranties, covenants or agreements contained in this Agreement or the Registration Rights Agreement. An Investor Party’s right to indemnification or other remedies based upon the representations, warranties, covenants and agreements of the Company set forth in the Transaction Documents shall not in any way be affected by any investigation or knowledge of such Investor Party. Such representations, warranties, covenants and agreements shall not be affected or deemed waived by reason of liable in any such case to the fact that an Investor Party knew or should have known extent that any representation such loss, claim, damage, liability or warranty might be inaccurate action arises out of or that is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Company failed to comply Prospectus Supplement in reliance upon and in conformity with any agreement or covenant. Any investigation by such Investor Party shall be for its own protection only and shall not affect or impair any right or remedy hereunder. Investor herby represents written information furnished to the Company that it is not aware by the Indemnified Party, specifically for use in the preparation thereof. In addition to their other obligations under this Section 8(a), the Company agrees that, as an interim measure during the pendency of any claim, action, investigation, inquiry or other proceeding brought or threatened against the Indemnified Party and which arises out of or based upon any statement or omission, or any alleged statement or omission, described in this Section 8(a), they will reimburse each Indemnified Party on a monthly basis for all reasonable legal fees or other expenses incurred in connection with investigating or defending any such claim, action, investigation, inquiry or other proceeding, notwithstanding the absence of a judicial determination as to the propriety and enforceability of the date hereof Company’s obligation to reimburse such Indemnified Party for such expenses and the possibility that such payments might later be held to have been improper by a court of any breach by the Company hereundercompetent jurisdiction. To the extent that any such interim reimbursement payment is so held to have been improper, each Indemnified Party that received such payment shall promptly return it to the foregoing undertakings party or parties that made such payment, together with interest, compounded daily, determined on the basis of the prime rate (or other commercial lending rate for borrowers of the highest credit standing) announced from time to time by The Wall Street Journal (the "Prime Rate"). Any such interim reimbursement payments which are not made to an Indemnified Party within 30 days of a request for reimbursement shall bear interest at the Prime Rate from the date of such request. This indemnity agreement shall be in addition to any liabilities which the Company set forth in this Section 9.1 may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Damages which is permissible under applicable law, provided that in no event shall the Investor be obligated to contribute any amount in excess of the aggregate proceeds from the resale of Shares less the aggregate VWAP Purchase Price received under this Agreementotherwise have.
Appears in 1 contract
Samples: Subscription Agreement (Novavax Inc)
Indemnification of the Investor. In consideration of the Investor’s execution and delivery of this Agreement and acquiring the Securities hereunder and in addition to all of the Company’s other obligations under the Transaction Documents to which it is a party, subject to the provisions of this Section 9.1, the The Company shall will indemnify and hold harmless the Investor, each of its directors, officers, stockholders, members, partners, employees, representatives, agents and advisors (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title), each Person, if any, who controls the Investor (within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act), and the respective directors, officers, stockholders, members, partners, employees, representatives, his agents and advisors (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title) of such controlling Persons (each, an “Investor PartyIndemnified Person”), each of which shall be an express third-party beneficiary of this Article IX, ) harmless from any and against actual all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses (expenses, including all judgments, amounts paid in settlement (to the extent that any such settlement has been pre-approved in writing by the Company)settlements, court costs, costs and reasonable attorneys’ fees and costs of defense and investigationinvestigation that any such Investor Indemnified Person may suffer or incur as a result of or in connection with (i) (collectively, “Damages”) that any action instituted by a third party against an Investor Party has suffered Indemnified Person resulting from or incurred resulting directly and primarily from in connection with any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or (ii) any action instituted against an Investor Indemnified Person in any capacity, or any of them or their respective affiliates, by any shareholder of the Company or any other Person who is not an affiliate of such Investor Indemnified Person, with respect to this Agreement or any of the transactions contemplated by this Agreement, including, without limitation, any action resulting from or in connection with any untrue statement or alleged untrue statement of any material fact contained in the Registration Rights Agreement Statement or Prospectus, as amended or supplemented, including all other documents filed as a part thereof or incorporated by reference therein, or an omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the other Transaction Documents to circumstances under which it is a party; providedthey were made, however, that the foregoing indemnity shall not apply misleading. The Company will not be liable to any Damages Investor Indemnified Person under this Agreement to the extent, but only to the extentextent that a loss, that such Damages resulted directly and primarily from a claim, damage or liability is attributable to any Investor Indemnified Person’s breach of any of the Investor’s representations, warranties, covenants or agreements contained made by such Investor Indemnified Person in this Agreement or attributable to the Registration Rights Agreement. An Investor Party’s right to indemnification gross negligence or other remedies based upon willful misconduct on the representations, warranties, covenants and agreements of the Company set forth in the Transaction Documents shall not in any way be affected by any investigation or knowledge part of such Investor Party. Such representationsIndemnified Person, warranties, covenants or is attributable to any actual or alleged untrue statement made in the Registration Statement or Prospectus in reliance upon and agreements shall not be affected or deemed waived by reason of the fact that an Investor Party knew or should have known that any representation or warranty might be inaccurate or that the Company failed to comply in conformity with any agreement or covenant. Any investigation by such Investor Party shall be for its own protection only and shall not affect or impair any right or remedy hereunder. Investor herby represents written information furnished to the Company that it is not aware as of the date hereof of any breach by the Company hereunderInvestor Indemnified Person specifically for use therein. To Notwithstanding anything to the extent that the foregoing undertakings by the Company set forth in this Section 9.1 may be unenforceable for any reasoncontrary contained herein, the Company shall make not be required to indemnify or hold harmless all Investor Indemnified Persons in an aggregate amount exceeding the maximum contribution to the payment and satisfaction of each of the Damages which is permissible under applicable law, provided that in no event shall aggregate purchase price payable by the Investor be obligated pursuant to contribute any amount in excess Section 2.1 of the aggregate proceeds from the resale of Shares less the aggregate VWAP Purchase Price received under this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Four Oaks Fincorp Inc)
