Indemnification of the Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold the Purchaser and 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 (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) 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, court costs and reasonable attorneys’ fees and costs of investigation (including local counsel, if retained) 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 the Purchaser 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 Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such shareholder or any conduct by such Purchaser Party which constitutes willful misconduct or gross negligence). 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 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 or (iii) in such action there is, in the reasonable opinion of the Purchaser Party, 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 (in addition to local counsel, if retained). The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. 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 8 contracts

Samples: Securities Purchase Agreement (Transportation & Logistics Systems, Inc.), Securities Purchase Agreement (Transportation & Logistics Systems, Inc.), Securities Purchase Agreement (Transportation & Logistics Systems, Inc.)

Indemnification of the Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold ~~the~~ each Purchaser and 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 (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) 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, court costs and reasonable attorneys’ fees and costs of investigation ~~(including local counsel, if retained)~~ 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 the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any ~~shareholder~~ stockholder of the Company who is not an Affiliate of such Purchaser 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 Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such ~~shareholder~~ stockholder or any violations by 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 or willful ~~misconduct or gross negligence~~misconduct). 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 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 or (~~iii~~z) in such action there is, in the reasonable opinion of ~~the Purchaser Party~~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 (in addition to local~~ counsel~~, if retained)~~. The Company will not be liable to any Purchaser Party under this Agreement (y1) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z2) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. 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 7 contracts

Samples: Securities Purchase Agreement (Baudax Bio, Inc.), Securities Purchase Agreement (Baudax Bio, Inc.), Securities Purchase Agreement (Baudax Bio, Inc.)

Indemnification of the Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold ~~the~~ each Purchaser and 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 (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) 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, court costs and reasonable attorneys’ fees and costs of investigation ~~(including local counsel, if retained)~~ 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 the Purchaser 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 Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such shareholder or any conduct by such Purchaser Party which constitutes willful misconduct or gross negligence)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 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 or (~~iii~~z) in such action there is, in the reasonable opinion of ~~the Purchaser Party~~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 (in addition to local~~ counsel~~, if retained)~~. The Company will not be liable to any Purchaser Party under this Agreement (yi) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (zii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. 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~~ the sole and exclusive remedy available to ~~any cause of action or similar right of any~~ each Purchaser Party ~~against~~ with respect to the ~~Company or others and any liabilities the Company may be subject to pursuant to law~~matters covered thereby.

Appears in 4 contracts

Samples: Securities Purchase Agreement (Gorilla Technology Group Inc.), Securities Purchase Agreement (Gorilla Technology Group Inc.), Securities Purchase Agreement (Gorilla Technology Group Inc.)

Indemnification of the Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold the Purchaser and 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 (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) 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, court costs and reasonable attorneys’ fees and costs of investigation (including local counsel, if retained) 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 the Purchaser 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 Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such shareholder or any conduct by such Purchaser Party which constitutes willful misconduct or gross negligence). 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 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 or (iii) in such action there is, in the reasonable opinion of counsel to the Purchaser Party, 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 (in addition to local counsel, if retained). The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. 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 4 contracts

Samples: Securities Purchase Agreement (International Land Alliance Inc.), Securities Purchase Agreement (Quantum Computing Inc.), Securities Purchase Agreement (Mitesco, Inc.)

Indemnification of the Purchasers. Subject to the provisions of this Section ~~4.8~~4.9, the Company will indemnify and hold ~~the~~ each Purchaser and 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 (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) 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, court costs and reasonable attorneys’ fees and costs of investigation ~~(including local counsel, if retained)~~ 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 the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any ~~shareholder~~ shareholders of the Company who is not an Affiliate of such Purchaser 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 Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such ~~shareholder~~ shareholders or any violations by 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 or willful ~~misconduct or gross negligence~~misconduct). 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 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 or (~~iii~~z) in such action there is, in the reasonable opinion of ~~the Purchaser Party~~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 (in addition to local~~ counsel~~, if retained)~~. The Company will not be liable to any Purchaser Party under this Agreement (y1) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z2) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. The indemnification required by this Section ~~4.8~~ 4.9 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 (RedHill Biopharma Ltd.), Securities Purchase Agreement (RedHill Biopharma Ltd.), Securities Purchase Agreement (RedHill Biopharma Ltd.)

Indemnification of the Purchasers. ~~Subject~~ In addition to the ~~provisions of~~ indemnity provided in the Registration Rights Agreement, subject to this Section 4.8, the Company will indemnify and hold ~~the~~ each Purchaser and 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 (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) of such controlling ~~persons~~ Person (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 ~~(including local counsel, if retained)~~ that any such Purchaser Party may suffer or ~~incur~~ incur, as a result of or relating to: (1) third party claims against such Purchaser 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~~ Documents, and (2) third party claims against a Purchaser or ~~(b)~~ any ~~action instituted against the Purchaser Parties~~ of its Affiliates, in any capacity, ~~or any of them or their respective Affiliates,~~ by any ~~shareholder of the Company~~ Person who is not an ~~Affiliate~~ Affiliate, limited partner, or other investor of such ~~Purchaser Party~~Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such ~~Purchaser Party~~Purchaser’s representations, warranties or covenants under the Transaction Documents or any ~~agreements or understandings such Purchaser Party may have with any such shareholder or any~~ conduct by such Purchaser ~~Party~~ which constitutes fraud, gross negligence, willful misconduct or gross negligence). 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 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 or (iii) in such action there is, in the reasonable opinion of the Purchaser Party, 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 (in addition to local counsel, if retainedmalfeasance). The Company will not be liable to any Purchaser Party under this Agreement ~~(y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z)~~ to the extent, but only to the extent that a loss, claim, damage or liability is attributable to ~~any~~ (i) the failure of such Purchaser ~~Party’s breach~~ Party to comply with the covenants and agreements contained in Section 4.8 below respecting sale of the Shares, (ii) the inaccuracy of any ~~of the representations, warranties, covenants or agreements~~ representations made by such Purchaser Party ~~in this Agreement~~ herein, or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. 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 (iii) information regarding such Purchaser Party ~~against~~ furnished in such Purchaser Party’s Accredited Investor Questionnaire to the Company ~~or others and any liabilities the Company may be subject to pursuant to law~~by such Purchaser Party.

Appears in 3 contracts

Samples: Securities Purchase Agreement (Corindus Vascular Robotics, Inc.), Securities Purchase Agreement (Hudson Executive Capital LP), Securities Purchase Agreement (Corindus Vascular Robotics, Inc.)

Indemnification of the Purchasers. Subject to the provisions of this Section ~~4.8~~4.4 and in addition to the indemnity provided to the Purchasers in Section 4.6(i), the Company will indemnify and hold the ~~Purchaser~~ Purchasers and ~~its~~ their respective 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~~ a 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 (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) of such controlling ~~persons~~ 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, court costs and reasonable attorneys’ fees and costs of investigation ~~(including local counsel, if retained)~~ 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~~ Documents; provided that such claim for indemnification relating to a breach of the representations or warranties is made prior to the expiration of the survival periods for such representations or warranties set forth in Section 5.11, or (b) any action instituted against the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any ~~shareholder~~ stockholder of the Company who is not an Affiliate of ~~such~~ the Purchaser ~~Party~~Party (a “Stockholder Claimant”), with respect to any of the transactions contemplated by the Transaction Documents (unless such action is solely based upon (i) a material breach of ~~such~~ the Purchaser Party’s representations, warranties or covenants under the Transaction ~~Documents or~~ Documents, (ii) any agreements or understandings ~~such~~ the Purchaser Party may have with any ~~such shareholder~~ Stockholder Claimant, (iii) any violations by the Purchaser Party of state or federal securities Laws or (iv) any conduct by ~~such~~ the Purchaser Party which ~~constitutes~~ is finally judicially determined to constitute fraud, gross negligence or willful ~~misconduct or gross negligence~~misconduct). 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 reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ (at the Company’s cost) separate counsel in any such action and participate in the defense thereof; provided, ~~but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent~~ however, that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of the Purchaser Party, 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 only be responsible for the reasonable fees and expenses of ~~no more than~~ one such separate ~~counsel (in addition to local~~ counsel~~, if retained)~~. The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a such Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to ~~any~~ such Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. The indemnification required by this Section ~~4.8~~ 4.4 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; provided that, if the Purchaser Party is determined by final judgment of a court of competent jurisdiction to be not entitled to indemnification, the Purchaser Party shall promptly reimburse the Company for the funds that were advanced. 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~~Law.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Flyexclusive Inc.), Securities Purchase Agreement (Hymowitz Gregg)

Indemnification of the Purchasers. ~~Subject~~ In addition to the ~~provisions of~~ indemnity provided in the Registration Rights Agreement, subject to this Section 4.8, the Company will indemnify and hold ~~the Purchaser~~ eachPurchaser and 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 (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) of such controlling ~~persons~~ Person (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 ~~(including local counsel, if retained)~~ that any such Purchaser Party may suffer or ~~incur~~ incur, as a result of or relating to ~~(a)~~ third party claims against such Purchaser 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 (b)~~ Documents, provided that such a claim for indemnification relating to any ~~action instituted against the Purchaser Parties in any capacity, or any~~ breach of ~~them or their respective Affiliates, by any shareholder of the Company who is not an Affiliate of such Purchaser Party, with respect to~~ any of the ~~transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser Party’s representations,~~ representations or warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such shareholder or any conduct by such Purchaser Party which constitutes willful misconduct or gross negligence). 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 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 made by the Company in ~~writing,~~ this Agreement is made within one (ii1) year from 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 the Purchaser Party, 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 (in addition to local counsel, if retained)Closing. The Company will not be liable to any Purchaser Party under this Agreement ~~(y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z)~~ to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. 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 2 contracts

Samples: Securities Purchase Agreement (Torchlight Energy Resources Inc), Securities Purchase Agreement (Torchlight Energy Resources Inc)

Indemnification of the Purchasers. Subject to ~~the provisions of~~ this Section ~~4.8~~4(h), the Company will indemnify and hold ~~the~~ each Purchaser and its directors, officers, shareholders, members, partners, employees and agents (and any other ~~Persons~~ persons with a functionally equivalent role of a ~~Person~~ person holding such titles notwithstanding a lack of such title or any other title), each ~~Person~~ 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 (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) of such controlling ~~persons~~ Person (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 ~~(including local counsel, if retained)~~ that any such Purchaser Party may suffer or ~~incur~~ incur, as a result of or relating to ~~(a)~~ third party claims against such Purchaser 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 (b)~~ Subscription, provided that such a claim for indemnification relating to any ~~action instituted against the Purchaser Parties in any capacity, or any~~ breach of ~~them or their respective Affiliates, by any shareholder of the Company who is not an Affiliate of such Purchaser Party, with respect to~~ any of the ~~transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser Party’s representations,~~ representations or warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such shareholder or any conduct by such Purchaser Party which constitutes willful misconduct or gross negligence). 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 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 made by the Company in ~~writing,~~ this Agreement is made within one (ii1) year from 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 the Purchaser Party, 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 (in addition to local counsel, if retained)Closing. The Company will not be liable to any Purchaser Party under this Agreement ~~(y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z)~~ to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other ~~Transaction Documents. The~~ Subscription or such Purchaser ~~Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company~~Party’s bad faith, its officers, directors and Affiliates receive unconditional releases in customary form. The indemnification required by this Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation fraud 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 lawwillful misconduct.

Appears in 2 contracts

Samples: Subscription Agreement (Generation Hemp, Inc.), Subscription Agreement (Generation Hemp, Inc.)

Indemnification of the Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold the ~~Purchaser~~ Purchasers and ~~its~~ their respective 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~~ the applicable 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 (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) of such controlling ~~persons~~ 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, court costs and reasonable attorneys’ fees and costs of investigation (including local counsel, if retained) 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~~ Documents, (b) any ~~action~~ Action instituted against the Purchaser 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 Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such ~~action~~ Action is based upon a breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such shareholder or any conduct by such Purchaser Party which constitutes willful misconduct or gross negligence)) or (c) any untrue or alleged untrue statement of a material fact contained in any registration statement, any prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading. If any ~~action~~ Action shall be brought against ~~any~~ the 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 reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such ~~action~~ 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 or (iii) in such ~~action~~ Action there is, in the reasonable opinion of the Purchaser Party, 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 (in addition to local counsel, if retained). The Company will not be liable to ~~any~~ the Purchaser Party under this Agreement (y) for any settlement by a the Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to ~~any~~ the Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any ~~action~~ Action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. 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. To extent that the Company has made any periodic payments pursuant to the foregoing sentence, and there is a later final and binding determination that the Company was not liable in respect of the related indemnification obligations hereunder, the Company may offset the amounts owing under the Note against such payments. The indemnity agreements contained herein shall be in addition to any cause of ~~action~~ Action or similar right of ~~any~~ the 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 (Digital Brands Group, Inc.), Securities Purchase Agreement (Digital Brands Group, Inc.)

Indemnification of the Purchasers. ~~Subject~~ In addition to the ~~provisions of~~ indemnity provided in the Registration Rights Agreement, subject to this Section ~~4.8~~4.9, the Company will indemnify and hold ~~the~~ each Purchaser and 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 (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) of such controlling ~~persons~~ Person (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 ~~(including local counsel, if retained)~~ that any such Purchaser Party may suffer or ~~incur~~ incur, as a result of or relating to ~~(a)~~ third party claims against such Purchaser 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 (b)~~ Documents, provided that such a claim for indemnification relating to any ~~action instituted against the Purchaser Parties in any capacity, or any~~ breach of ~~them or their respective Affiliates, by any shareholder of the Company who is not an Affiliate of such Purchaser Party, with respect to~~ any of the ~~transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser Party’s representations,~~ representations or warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such shareholder or any conduct by such Purchaser Party which constitutes willful misconduct or gross negligence). 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 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 made by the Company in ~~writing,~~ this Agreement is made within one (ii1) year from 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 the Purchaser Party, 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 (in addition to local counsel, if retained)Closing. The Company will not be liable to any Purchaser Party under this Agreement ~~(y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z)~~ to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. 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 2 contracts

Samples: Securities Purchase Agreement (Ignyta, Inc.), Securities Purchase Agreement (Ignyta, Inc.)

Indemnification of the Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold ~~the~~ each Purchaser and 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 (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) 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, court costs and reasonable attorneys’ fees and costs of investigation ~~(including local counsel, if retained)~~ 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 the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any ~~shareholder~~ stockholder of the Company who is not an Affiliate of such Purchaser 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 Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such ~~shareholder~~ stockholder or any violations by 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 or willful ~~misconduct or gross negligence~~misconduct). 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 reasonably acceptable to the Purchaser Party. However, the Company shall not settle any claims thereof without the applicable Purchaser Party’s prior written consent, which shall not be unreasonably withheld or delayed. 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 or (~~iii~~z) in such action there is, in the reasonable opinion of ~~the Purchaser Party~~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 (in addition to local~~ counsel~~, if retained)~~. The Company will not be liable to any Purchaser Party under this Agreement (y1) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z2) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. 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 2 contracts

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

Indemnification of the Purchasers. Subject to the provisions of this Section ~~4.8~~4.10, the Company will indemnify and hold ~~the~~ each Purchaser and 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 (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) 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, court costs and reasonable attorneys’ fees and costs of investigation ~~(including local counsel, if retained)~~ 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 the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any ~~shareholder~~ stockholder of the Company who is not an Affiliate of such Purchaser 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 Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such ~~shareholder~~ stockholder or any violations by 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 or willful misconduct). For the avoidance of doubt, the Company will reimburse each Purchaser Party for all reasonable expenses (including reasonable fees and expenses of counsel) as they are incurred in connection with investigating, preparing, pursuing or defending any such action whether or not pending or threatened and whether or not any Purchaser Party is a party, provided that the Company will not be responsible for any losses, claims, damages or liabilities (or expense relating thereto) that are judicially determined in a judgment not subject to appeal to have resulted from the bad faith, gross negligence or intentional misconduct ~~or gross negligence)~~of any Purchaser Party. 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 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 or (iii) in such action there is, in the reasonable opinion of ~~the Purchaser Party~~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 (in addition to local~~ counsel~~, if retained)~~. The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. The indemnification required by this Section ~~4.8~~ 4.10 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 (Progressive Care Inc.), Securities Purchase Agreement (NextPlat Corp)

Indemnification of the Purchasers. ~~Subject to~~ The Company and the ~~provisions of this Section 4.8, the Company~~ Guarantors will jointly and severally indemnify and hold ~~the Purchaser and~~ harmless each Purchaser, its ~~directors,~~ officers, ~~shareholders~~employees, agents, partners, members, ~~partners~~directors and its affiliates and each person, ~~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)~~if any, ~~each Person~~ who controls such Purchaser (within the meaning of Section 15 of the Securities Act ~~and~~ or Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (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) of such controlling persons Act (each, a an “~~Purchaser~~ Indemnified Party”~~) harmless from~~ ), against any and all losses, claims, damages or liabilities, ~~obligations~~joint 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, ~~contingencies~~damages or 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 Memorandum or the Final Offering Memorandum, ~~damages, costs and expenses, including all judgments, amounts paid~~ in ~~settlements, court costs and reasonable attorneys’ fees and costs of investigation~~ each case as amended or supplemented or any Issuer Free Writing Communication (including ~~local counsel~~with limitation, ~~if retained) that~~ any Supplemental Marketing Material), any Exchange Act report, or arise out of or are based upon the omission or alleged omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and 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 such ~~Purchaser~~ loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party ~~may suffer~~ is a party thereto), whether threatened or ~~incur as a result~~ commenced, and in connection with the enforcement 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 the Purchaser 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 Purchaser Party, 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 Party’s representations~~expenses are incurred; provided, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such shareholder or any conduct by such Purchaser Party which constitutes willful misconduct or gross negligence). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreementhowever, ~~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 reasonably acceptable to the Purchaser Party. 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 or (iii) in such action there is, in the reasonable opinion of the Purchaser Party, 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 (in addition to local counsel, if retained). The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, 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~~ information described as such ~~Purchaser Party~~ in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. 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 lawsubsection (b) below.

Appears in 2 contracts

Samples: Purchase Agreement (Diamondback Energy, Inc.), Purchase Agreement (Diamondback Energy, Inc.)

Indemnification of the Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold ~~the~~ each Purchaser and 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 (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) 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, court costs and reasonable attorneys’ fees and costs of investigation (including local counsel, if retained) 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~~ Documents, (b) any action instituted against the Purchaser 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 Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such shareholder or any conduct by such Purchaser Party which constitutes willful misconduct or gross negligence)) or (c) any untrue or alleged untrue statement of a material fact contained in any registration statement, any prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading. 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 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 or (iii) in such action there is, in the reasonable opinion of the Purchaser Party, 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 (in addition to local counsel, if retained). The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. 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

Samples: Securities Purchase Agreement (Quad M Solutions, Inc.)

Indemnification of the Purchasers. ~~Subject~~ In addition to the ~~provisions of~~ indemnity provided in the Registration Rights Agreement, subject to this Section 4.8, the Company will indemnify and hold ~~the~~ each Purchaser and 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 (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) of such controlling ~~persons~~ Person (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 ~~(including local counsel, if retained)~~ that any such Purchaser Party may suffer or ~~incur~~ incur, as a result of or relating to: (1) third party claims against such Purchaser 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~~ Documents, and (2) third party claims against a Purchaser or ~~(b)~~ any ~~action instituted against the Purchaser Parties~~ of its Affiliates, in any capacity, ~~or any of them or their respective Affiliates,~~ by any ~~shareholder of the Company~~ Person who is not an ~~Affiliate~~ Affiliate, limited partner, or other investor of such ~~Purchaser Party~~Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such ~~Purchaser Party~~Purchaser’s representations, warranties or covenants under the Transaction Documents or any ~~agreements or understandings such Purchaser Party may have with any such shareholder or any~~ conduct by such Purchaser ~~Party~~ which constitutes fraud, gross negligence, willful misconduct or gross negligence). 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 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 or (iii) in such action there is, in the reasonable opinion of the Purchaser Party, 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 (in addition to local counsel, if retainedmalfeasance). The Company will not be liable to any Purchaser Party under this Agreement ~~(y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z)~~ to the extent, but only to the extent that a loss, claim, damage or liability is attributable to ~~any~~ (i) the failure of such Purchaser ~~Party’s breach~~ Party to comply with the covenants and agreements contained in Section 4.8 below respecting sale of the Securities, (ii) the inaccuracy of any ~~of the representations, warranties, covenants or agreements~~ representations made by such Purchaser Party ~~in this Agreement~~ herein, or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. 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 (iii) information regarding such Purchaser Party ~~against~~ furnished in such Purchaser Party’s Accredited Investor Questionnaire to the Company ~~or others and any liabilities the Company may be subject to pursuant to law~~by such Purchaser Party.

Appears in 1 contract

Samples: Securities Purchase Agreement (Corindus Vascular Robotics, Inc.)

Indemnification of the Purchasers. Subject to the provisions of this Section ~~4.8~~4.9, the Company will indemnify and hold the ~~Purchaser~~ Purchasers and ~~its~~ their directors, officers, ~~shareholders~~stockholders, 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~~ a Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, ~~shareholders~~stockholders, agents, members, partners or employees (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) 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, court costs and reasonable attorneys’ fees and costs of investigation ~~(including local counsel, if retained)~~ 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 ~~the~~ any Purchaser ~~Parties~~ Party in any capacity, or any of them or their respective Affiliates, by any ~~shareholder~~ stockholder of the Company who is not an Affiliate of ~~such~~ the Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of ~~such Purchaser Party~~the Purchaser’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings ~~such~~ the Purchaser Party may have with any such ~~shareholder~~ stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by ~~such~~ the Purchaser Party which constitutes fraud, gross negligence, willful misconduct or ~~gross negligence~~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~~ choice that is reasonably acceptable to the Purchaser ~~Party~~Party being sued. 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 or (iii) in such action there is, in the reasonable opinion of ~~the Purchaser Party~~counsel, a material conflict on any material issue between the position of the Company and the position of ~~such~~ the Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate ~~counsel (in addition to local~~ counsel~~, if retained)~~. The Company will not be liable to any Purchaser Party under this Agreement (yx) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (zy) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any ~~Purchaser Party~~Purchaser’s breach of any of the representations, warranties, covenants or agreements made by ~~such~~ the Purchaser ~~Party~~ in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. The indemnification required by this Section ~~4.8~~ 4.9 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~~ indemnification 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~~under applicable laws.

Appears in 1 contract

Samples: Securities Purchase Agreement (Biohitech Global, Inc.)

Indemnification of the Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold the Purchaser and 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 (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) 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, court costs and reasonable attorneys’ fees and costs of investigation (including local counsel, if retained) 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~~ Documents, (b) any action instituted against the Purchaser 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 Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such shareholder or any conduct by such Purchaser Party which constitutes willful misconduct or gross negligence)) or (c) any untrue or alleged untrue statement of a material fact contained in any registration statement, any prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading. 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 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 or (iii) in such action there is, in the reasonable opinion of the Purchaser Party, 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 (in addition to local counsel, if retained). The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. 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

Samples: Securities Purchase Agreement (Transportation & Logistics Systems, Inc.)

Indemnification of the Purchasers. ~~Subject~~ In addition to the ~~provisions of this Section 4.8~~indemnity provided in the Registration Rights Agreement, the Company will indemnify and hold ~~the~~ each Purchaser and 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 (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) of such controlling ~~persons~~ person (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 ~~(including local counsel, if retained)~~ that any such Purchaser Party may suffer or ~~incur~~ incur, as a result of or relating to ~~(a)~~ third party claims against such Purchaser 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 (b) any action instituted against the Purchaser 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 Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such shareholder or any conduct by such Purchaser Party which constitutes willful misconduct or gross negligence). 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 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 or (iii) in such action there is, in the reasonable opinion of the Purchaser Party, 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 (in addition to local counsel, if retained)Documents. The Company will not be liable to any Purchaser Party under this Agreement ~~(y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z)~~ to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. 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

Samples: Securities Purchase Agreement (COMMITTED CAPITAL ACQUISITION Corp)

Indemnification of the Purchasers. Subject to the provisions of this Section ~~4.8~~4.6, the Company will indemnify and hold ~~the~~ each Purchaser and 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 (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) 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, court costs and reasonable attorneys’ fees and costs of investigation ~~(including local counsel, if retained)~~ that ~~any such~~ the 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 the Purchaser 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~~ the Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (~~unless~~ except to the extent such action is based upon a material breach of ~~such~~ the Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings ~~such~~ the Purchaser Party may have with any such shareholder or any violations by the Purchaser Party of state or federal securities laws or any conduct by ~~such~~ the Purchaser Party which ~~constitutes~~ is finally judicially determined to constitute fraud, gross negligence or willful ~~misconduct or gross negligence)~~misconduct. If any action shall be brought against ~~any~~ the 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 reasonably acceptable to the Purchaser Party. ~~Any~~ The 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 (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 or (~~iii~~z) in such action there is, in the reasonable opinion of ~~the Purchaser Party~~counsel, a material conflict on any material issue between the position of the Company and the position of ~~such~~ the Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate ~~counsel (in addition to local~~ counsel~~, if retained)~~. The Company will not be liable to ~~any~~ the Purchaser Party under this Agreement (y1) for any settlement by a the Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z2) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to ~~any~~ the Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by ~~such~~ the Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. The indemnification required by this Section ~~4.8~~ 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~~ the Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.

Appears in 1 contract

Samples: Securities Purchase Agreement (Ambrx Biopharma Inc.)

Indemnification of the Purchasers. Subject to ~~the provisions of~~ this Section ~~4.8~~4(h), the Company will indemnify and hold ~~the~~ each Purchaser and its directors, officers, shareholders, members, partners, employees and agents (and any other ~~Persons~~ persons with a functionally equivalent role of a ~~Person~~ person holding such titles notwithstanding a lack of such title or any other title), each ~~Person~~ 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 (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) of such controlling ~~persons~~ Person (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 ~~(including local counsel, if retained)~~ that any such Purchaser Party may suffer or ~~incur~~ incur, as a result of or relating to ~~(a)~~ third party claims against such Purchaser 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 (b)~~ Subscription, provided that such a claim for indemnification relating to any ~~action instituted against the Purchaser Parties in any capacity, or any~~ breach of ~~them or their respective Affiliates, by any shareholder of the Company who is not an Affiliate of such Purchaser Party, with respect to~~ any of the ~~transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser Party’s representations,~~ representations or warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such shareholder or any conduct by such Purchaser Party which constitutes willful misconduct or gross negligence). 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 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 made by the Company in ~~writing,~~ this Agreement is made within one (ii1) year from 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 the Purchaser Party, 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 (in addition to local counsel, if retained)Closing. The Company will not be liable to any Purchaser Party under this Agreement ~~(y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z)~~ to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other ~~Transaction Documents~~Subscription or such Purchaser Party’s bad faith, fraud or willful misconduct. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. 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.Subscription Agreement

Appears in 1 contract

Samples: Subscription Agreement (Evergreen Sustainable Enterprises, Inc.)

Indemnification of the Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold the Purchaser and 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 (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) of such controlling ~~persons~~ 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, court costs and reasonable attorneys’ fees and costs of investigation (including local counsel, if retained) 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~~ Documents, (b) any ~~action~~ Action instituted against the Purchaser 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 Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such ~~action~~ Action is based upon a breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such shareholder or any conduct by such Purchaser Party which constitutes willful misconduct or gross negligence)) or (c) any untrue or alleged untrue statement of a material fact contained in any registration statement, any prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading. If any ~~action~~ 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 reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such ~~action~~ 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 or (iii) in such ~~action~~ Action there is, in the reasonable opinion of the Purchaser Party, 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 (in addition to local counsel, if retained). The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any ~~action~~ Action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. 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~~ 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

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

Indemnification of the Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold ~~the~~ each Purchaser and 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 (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) 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, court costs and reasonable attorneys’ fees and costs of investigation ~~(including local counsel, if retained)~~ 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 the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any ~~shareholder~~ stockholder of the Company who is not an Affiliate of such Purchaser 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 Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such ~~shareholder~~ stockholder or any violations by 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 or willful ~~misconduct~~ misconduct), or ~~gross negligence)~~(c) in connection with any registration statement of the Company providing for the resale by the Purchasers of the Warrant Shares issued and issuable upon exercise of the Warrants, the Company will indemnify each Purchaser Party, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees) and expenses, as incurred, arising out of or relating to (i) any untrue or alleged untrue statement of a material fact contained in such registration statement, any prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or supplement thereto, in the light of the circumstances under which they were made) not misleading, except to the extent, but only to the extent, that such untrue statements or omissions are based solely upon information regarding such Purchaser Party furnished in writing to the Company by such Purchaser Party expressly for use therein, or (ii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law, or any rule or regulation thereunder in connection therewith. 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 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 or (~~iii~~z) in such action there is, in the reasonable opinion of ~~the Purchaser Party~~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 (in addition to local~~ counsel~~, if retained)~~. The Company will not be liable to any Purchaser Party under this Agreement (y1) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z2) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. 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

Samples: Securities Purchase Agreement (Baudax Bio, Inc.)

Indemnification of the Purchasers. ~~Subject~~ In addition to the ~~provisions of~~ indemnity provided in the Registration Rights Agreement, subject to this Section ~~4.8~~4.6, the Company will indemnify and hold ~~the~~ each Purchaser and 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 (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) of such controlling ~~persons~~ Person (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 ~~(including local counsel, if retained)~~ that any such Purchaser Party may suffer or ~~incur~~ incur, as a result of or relating to: (1) third party claims against such Purchaser 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~~ Documents, and (2) third party claims against a Purchaser or ~~(b)~~ any ~~action instituted against the Purchaser Parties~~ of its Affiliates, in any capacity, ~~or any of them or their respective Affiliates,~~ by any ~~shareholder of the Company~~ Person who is not an ~~Affiliate~~ Affiliate, limited partner, or other investor of such ~~Purchaser Party~~Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such ~~Purchaser Party~~Purchaser’s representations, warranties or covenants under the Transaction Documents or any ~~agreements or understandings such Purchaser Party may have with any such shareholder or any~~ conduct by such Purchaser ~~Party~~ which constitutes fraud, gross negligence, willful misconduct or gross negligence). 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 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 or (iii) in such action there is, in the reasonable opinion of the Purchaser Party, 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 (in addition to local counsel, if retainedmalfeasance). The Company will not be liable to any Purchaser Party under this Agreement ~~(y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z)~~ to the extent, but only to the extent that a loss, claim, damage or liability is attributable to ~~any~~ (i) the failure of such Purchaser ~~Party’s breach~~ Party to comply with the covenants and agreements contained in Section 4.9 below respecting sale of the Securities, (ii) the inaccuracy of any ~~of the representations, warranties, covenants or agreements~~ representations made by such Purchaser Party ~~in this Agreement~~ herein, or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. 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 (iii) information regarding such Purchaser Party ~~against~~ furnished in such Purchaser Party’s Accredited Investor Questionnaire to the Company ~~or others and any liabilities the Company may be subject to pursuant to law~~by such Purchaser Party.

Appears in 1 contract

Samples: Securities Purchase Agreement (Corindus Vascular Robotics, Inc.)

Indemnification of the Purchasers. Subject to the provisions of this Section ~~4.8~~4.6, the Company will indemnify and hold ~~the~~ each Purchaser and its directors, officers, shareholders, members, partners, ~~employees~~ employees, administrators, managers, counsel, advisors, other representatives 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~~ partners, employees, administrators, managers, 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) of such controlling persons (each, a “Purchaser Party”) harmless from and against any and all losses, liabilities, obligations, demands, claims, contingencies, damages, penalties, costs and expenses, including all actions, judgments, suits, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation ~~(including local counsel, if retained)~~ that any such Purchaser Party may suffer or incur as a result of, arising out of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company or any Subsidiary in this Agreement or in the other Transaction Documents, (b) the execution, delivery, enforcement, performance or administration of this Agreement, the other Transaction Documents or any other agreement, letter or instrument delivered in connection with the transactions contemplated by the Transaction Documents and the performance by the parties thereto of their obligations thereunder or the Transactions or the consummation thereof or (bc) any action instituted against the Purchaser Parties in any ~~capacity~~capacity (including a Purchaser Party’s status as an investor), or any of them or their respective Affiliates, by any ~~shareholder of the Company~~ Person who is not an Affiliate of such Purchaser Party (provided that, in no event shall the Company or any Affiliate thereof be deemed to be an Affiliate of any Purchaser Party), ~~with respect~~ arising out of or relating to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have other than with ~~any such shareholder or~~ respect to any conduct by such Purchaser Party which ~~constitutes~~ is finally judicially determined to constitute fraud, gross negligence or willful ~~misconduct or gross negligence~~misconduct). If Notwithstanding any ~~action~~ other provision of this Agreement, (x) the Company shall ~~be brought against~~ not settle any ~~Purchaser Party in respect of~~ third-party claim under which ~~indemnity~~ indemnification may be sought ~~pursuant to this Agreement~~hereunder without the consent of the applicable indemnified Purchaser Parties, ~~such Purchaser Party shall promptly notify~~ unless the ~~Company in writing~~settlement thereof imposes no liability or obligation on, and includes a complete, unconditional and irrevocable release from liability of, and does not include any statement or admission of fault, culpability, wrongdoing or malfeasance by, the ~~Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the~~ indemnified Purchaser ~~Party. Any Purchaser Party shall have the right to employ separate counsel in any such action~~ Parties 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~~ (iy) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of the Purchaser Party, 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 (in addition to local counsel, if retained). The Company will not be liable to any Purchaser Party under this Agreement ~~(y)~~ for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably ~~withheld~~ withheld, conditioned or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. The indemnification required by this Section ~~4.8~~ 4.6 shall be made by periodic payments of the amount ~~thereof during the course of the investigation or defense~~thereof, 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. This Section 4.6 shall survive, remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the Closing or the consummation of the transactions contemplated hereby or under the other Transaction Documents (or the failure to consummate the transactions contemplated hereby or under the other Transaction Documents), the transfer of any of the Securities, the enforcement, amendment or waiver of any provision of this Agreement or any other Transaction Document or the termination of this Agreement or any other Transaction Document, the invalidity or unenforceability of any term or provision of this Agreement or any other Transaction Document, or any investigation made by or on behalf of the Company or any Purchaser.

Appears in 1 contract

Samples: Securities Purchase Agreement (Prairie Operating Co.)

Indemnification of the Purchasers. Subject to the provisions of this Section ~~4.8~~4.10, the Company will indemnify and hold the ~~Purchaser~~ Purchasers and ~~its~~ their Affiliates, directors, officers, ~~shareholders~~stockholders, 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~~ or is alleged to control the Purchasers (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, ~~shareholders~~stockholders, agents, members, partners or employees (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) 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, court costs and reasonable attorneys’ fees and costs of investigation ~~(including local counsel, if retained)~~ 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~~ Agreement, and (b) any action instituted against the Purchaser ~~Parties~~ Party in any capacity, or any of them or their respective ~~Affiliates,~~ Affiliates (other than an action instituted by ~~any shareholder of~~ a Purchaser Party against another Purchaser Party and not also against the Company ~~who~~ and in which the Company is not ~~an Affiliate of such Purchaser Party~~otherwise a party), 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 Party’s representations, warranties or covenants under ~~the Transaction Documents~~ this Agreement or any agreements or understandings such Purchaser Party may have with any ~~such shareholder~~ stockholder of the Company or any ~~conduct~~ violations by such Purchaser Party ~~which constitutes willful misconduct~~ of state or ~~gross negligence~~federal securities laws), including, but not limited to, actions taken in the preparation, negotiation, execution and delivery of the Transaction Agreements, the administration of the Notes, the filing, perfection and maintenance of Liens securing Collateral (as defined in the Indenture), and any actual or proposed amendment, supplement or waiver of any of the Transaction Agreements (whether or not the transactions contemplated hereby or thereby shall be consummated). 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 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 (not to exceed 90 days) or (iii) in such action there ~~is, in the reasonable opinion of the Purchaser Party,~~ is a ~~material~~ conflict or potential 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 ~~(in addition to~~ and local ~~counsel, if retained)~~counsel and shall pay such fees and expenses as incurred. The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; provided, however, that if at any time a Purchaser Party shall have requested the Company to reimburse such Purchaser Party for fees and expenses of counsel as contemplated by this Section 4.10, 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 the Company of the aforesaid request, (ii) the Company shall have received notice of the terms of such settlement at least 10 days prior to such settlement being entered into, (iii) the Company shall not have reimbursed the Purchaser Party in accordance with such request and (iv) the Company shall not have provided written notice within 10 days from such notice of the terms of such settlement of its reasonably withheld consent that acknowledges its continued liability under this Section 4.10 for such proceeding; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in any agreements or understandings such Purchaser Party may have with any stockholder of the ~~other Transaction Documents~~Company or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party that a court of competent jurisdiction issues a final non-appealable order that such conduct constitutes fraud, gross negligence, willful misconduct or malfeasance. The Company shall not, without the prior written consent of the Purchasers, 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 Purchaser ~~Parties shall~~ Party is or could have been a party and indemnity was or could have been sought hereunder by such Purchaser Party, unless such settlement, compromise or consent (i) includes an unconditional release of such Purchaser Party from all liability on claims that are the ~~right~~ subject matter of such action, suit or proceeding and (ii) does not include any statements as to ~~settle~~ or any ~~action against~~ findings of fault, culpability or failure to act by or on behalf of any ~~of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form~~Purchaser Party. The indemnification required by this Section ~~4.8~~ 4.10 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

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

Indemnification of the Purchasers. ~~Subject~~ In addition to the ~~provisions of~~ indemnity provided in the Registration Rights Agreement, subject to this Section ~~4.8~~4.6, the Company will defend, protect and indemnify and hold ~~the~~ each Purchaser and its directors, officers, shareholders, members, partners, ~~employees~~ employees, direct or indirect investors 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~~ partners, employees or ~~employees~~ direct or indirect investors (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) of such controlling ~~persons~~ Person (each, a “Purchaser Party”) harmless from any and all actions, causes of action, suits, claims, costs, penalties, fees, losses, liabilities, ~~obligations, claims, contingencies, damages, costs and expenses~~deficiencies or damages incurred by a Purchaser Party, including all ~~judgments, amounts paid in settlements, court costs and~~ reasonable attorneys’ fees and costs ~~of investigation (including local counsel, if retained)~~ that any such Purchaser Party may ~~suffer or incur~~ incur, that are as a result of of, or arising out of, or relating to (a) ~~any~~ the Company’s breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction ~~Documents~~ 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 the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any shareholder~~ brought on behalf of the Company ~~who is not an Affiliate~~ or any Subsidiary) and arising out of or resulting from (i) the Company’s execution, delivery, performance or enforcement of any of the Transaction Documents, (ii) any transaction by the Company financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Securities, (iii) any disclosure properly made by such Purchaser pursuant to Section 4.9(b) or (iv) the status of such Purchaser ~~Party, with respect~~ or holder of the Securities as an investor in the Company pursuant to ~~any of~~ the transactions contemplated by the Transaction ~~Documents (unless such action is based upon a breach of such Purchaser Party’s representations, warranties or covenants under~~ Documents. To the ~~Transaction Documents or any agreements or understandings such Purchaser Party may have with any such shareholder or any conduct~~ extent that the foregoing undertaking by ~~such Purchaser Party which constitutes willful misconduct or gross negligence). If any action shall be brought against any Purchaser Party in respect of which indemnity~~ the Company may be ~~sought pursuant to this Agreement~~unenforceable for any reason, ~~such Purchaser Party shall promptly notify the Company in writing, and~~ the Company shall ~~have~~ make the ~~right to assume the defense thereof with counsel of its own choosing reasonably acceptable~~ maximum contribution to the ~~Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action~~ payment and ~~participate in the defense thereof, but the fees and expenses~~ satisfaction 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 or (iii) in such action there is, in the reasonable opinion each of the ~~Purchaser Party~~indemnified liabilities which is permissible under applicable law. Notwithstanding the foregoing, ~~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 (in addition to local counsel, if retained). The Company will not be liable to any Purchaser Party under this Agreement ~~(y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only~~ to the extent that a loss, ~~claim,~~ damage or liability is attributable to ~~any~~ such Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. 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

Samples: Securities Purchase Agreement (Great American Group, Inc.)

Indemnification of the Purchasers. Subject to the provisions of this Section ~~4.8~~4.9, the Company will indemnify and hold ~~the~~ each Purchaser and its directors, officers, shareholders, members, partners, ~~employees~~ employees, agents, successors and ~~agents~~ permitted assigns (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 (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) of such controlling ~~persons~~ person (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 ~~(including local counsel, if retained)~~ 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 ~~the~~ a Purchaser ~~Parties~~ in any capacity, or any of them or their respective Affiliates, by any ~~shareholder~~ stockholder of the Company who is not an Affiliate of such ~~Purchaser Party~~Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such ~~Purchaser Party~~Purchaser’s representations, warranties or covenants under the Transaction Documents to which it is a party or any agreements or understandings such Purchaser ~~Party~~ may have with any such ~~shareholder~~ stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser ~~Party~~ which constitutes ~~willful misconduct~~ gross negligence or ~~gross negligence~~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 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 or (iii) in such action there is, in the reasonable opinion of ~~the Purchaser Party~~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 (~~counsel. the employment thereof has been specifically authorized by the Company in ~~addition to local counsel, if retained)~~writing. The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction ~~Documents. The~~ Documents to which it is a party or from such Purchaser ~~Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company~~Party’s fraud, ~~its officers~~gross negligence, directors and Affiliates receive unconditional releases in customary form. The indemnification required by this Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation willful misconduct 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 lawmalfeasance.

Appears in 1 contract

Samples: Securities Purchase Agreement (China Green Material Technologies, Inc.)

Indemnification of the Purchasers. Subject to the provisions of this Section ~~4.8~~4.9, the Company will indemnify and hold the ~~Purchaser~~ Purchasers and ~~its~~ their respective directors, officers, managers, 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, managers, shareholders, agents, members, partners or employees (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) 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, court costs and reasonable attorneys’ fees and costs of investigation ~~(including local counsel, if retained)~~ 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 the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any ~~shareholder~~ stockholder of the Company who is not an Affiliate of ~~such~~ the Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of ~~such~~ the Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings ~~such~~ the Purchaser Party may have with any such ~~shareholder~~ stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by ~~such~~ the Purchaser Party which constitutes fraud, gross negligence, willful misconduct or ~~gross negligence~~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 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~~ 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 or (iii) in such action there is, in the reasonable opinion of ~~the Purchaser Party~~counsel, a material conflict on any material issue between the position of the Company and the position of ~~such~~ the Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate ~~counsel (in addition to local~~ counsel~~, if retained)~~. The Company will not be liable to any Purchaser Party under this Agreement (yx) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (zy) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by ~~such~~ the Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. The indemnification required by this Section ~~4.8~~ 4.9 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~~ indemnification 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

Samples: Securities Purchase Agreement (American Noble Gas, Inc.)

Common use of Indemnification of the Purchasers Clause in Contracts