Indemnification of Underwriters by Selling Stockholders. The Selling Stockholders, severally and not jointly, will indemnify and hold harmless each Indemnified Party, against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, 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 any part of any Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing Prospectus, or arise out of or are based upon the 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, in 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 or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to the above as such expenses are incurred; provided, however, that each Selling Stockholder shall be subject to such liability only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission is based upon the applicable Selling Stockholder Information; and provided, further, that the liability under this subsection of each Selling Stockholder shall be limited to an amount equal to the aggregate gross proceeds after underwriting commissions and discounts, but before expenses, to such Selling Stockholder from the sale of Securities sold by such Selling Stockholder hereunder (with respect to each Selling Stockholder, such amount being referred to herein as such Selling Stockholder’s “Sale Proceeds”).
Appears in 4 contracts
Samples: Underwriting Agreement (Douglas Dynamics, Inc), Underwriting Agreement (Douglas Dynamics, Inc), Underwriting Agreement (Douglas Dynamics, Inc)
Indemnification of Underwriters by Selling Stockholders. The Each Selling StockholdersStockholder, severally and not jointly, will agrees to indemnify and hold harmless each Indemnified PartyUnderwriter, its Affiliates and selling agents and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all lossesloss, claimsliability, damages or liabilitiesclaim, joint or several, to which such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar damage and expense whatsoever as such losses, claims, damages or liabilities (or actions in respect thereof) arise incurred arising out of or are based upon any untrue statement or alleged untrue statement of any a material fact contained in any part of any the Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus (or any Issuer Free Writing Prospectusamendment thereto), or arise out of or are based upon the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included (A) in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto), or (B) in any Marketing Materials, including any roadshow or investor presentations made to investors by the Company (whether in person or electronically), or the omission or alleged omission in any preliminary prospectus, Issuer Free Writing Prospectus, Prospectus or in any Marketing Materials of a material fact necessary in order to make the statements therein, in the case of any prospectus, in 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 or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to the above as such expenses are incurred; provided, however, that each Selling Stockholder shall be subject to such liability but only to the extent that the such untrue statement or alleged untrue statement or omission or alleged omission is based was made in the Registration Statement (or any amendment thereto) or in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) or in any Marketing Materials in reliance upon and in conformity with the applicable Selling Stockholder Information; and provided, further, that the liability under this subsection of each Selling Stockholder shall be limited to an amount equal to the aggregate gross proceeds after underwriting commissions and discounts, but before expenses, to such Selling Stockholder from the sale of Securities sold by such Selling Stockholder hereunder (with respect to each Selling Stockholder, such amount being referred to herein as such Selling Stockholder’s “Sale Proceeds”).
Appears in 4 contracts
Samples: Underwriting Agreement (Milacron Holdings Corp.), Underwriting Agreement (Milacron Holdings Corp.), Underwriting Agreement (Milacron Holdings Corp.)
Indemnification of Underwriters by Selling Stockholders. The Each Selling StockholdersStockholder, severally and but not jointly, will indemnify and hold harmless each Indemnified Party, against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, 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 any part of any Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing Prospectus, or arise out of or are based upon the 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, in 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 or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to the above as such expenses are incurred; provided, however, that each such Selling Stockholder shall be subject to such liability only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission is based made in reliance upon and in conformity with the applicable Selling Stockholder Information; Information or contained in a representation or warranty given by such Selling Stockholder in this Agreement or the Custody Agreement and provided, further, that the liability under this subsection of each Selling Stockholder shall be limited to an amount equal to the aggregate gross proceeds after underwriting commissions and discounts, but before expenses, to such Selling Stockholder from the sale of Securities sold by such Selling Stockholder hereunder (with respect to each Selling Stockholder, such amount being referred to herein as such Selling Stockholder’s “Sale Proceeds”)hereunder.
Appears in 4 contracts
Samples: Underwriting Agreement (IPC the Hospitalist Company, Inc.), Underwriting Agreement (IPC the Hospitalist Company, Inc.), Underwriting Agreement (IPC the Hospitalist Company, Inc.)
Indemnification of Underwriters by Selling Stockholders. The Selling Stockholders, severally and not jointly, will indemnify and hold harmless each Underwriter, its partners, members, directors, officers, employees, agents, affiliates and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, a “Selling Stockholder Indemnified Party”), against any and all losses, claims, damages or liabilities, joint or several, to which such Selling Stockholder Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, 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 fact, in the case of any Registration Statement, contained in any part of any Registration Statement thereof at any time, any Statutory Prospectus as of any time, the Final Prospectus time or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (not misleading, and in the case of any prospectusStatutory Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus as of any time, included in any part thereof as of any time or upon the omission or alleged omission of a material fact necessary to make the statements therein, in the light of the circumstances under which they were made) , not misleading, and will reimburse each Selling Stockholder Indemnified Party for any legal or other expenses reasonably incurred by such Selling Stockholder Indemnified Party in connection with investigating or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Selling Stockholder Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to the above as such expenses are incurred; provided, however, that each the Selling Stockholder shall Stockholders will only be subject to liable in any such liability only case to the extent that the any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission is based from any of such documents in reliance upon and in conformity with written information furnished to the applicable Company by any such Selling Stockholder Information; specifically for use therein, it being understood and provided, further, agreed that the only such information furnished by any Selling Stockholder consists of the following information: each Selling Stockholder’s name and corresponding share amounts set forth in the table of Selling Securityholders in the Registration Statement and Final Prospectus under the heading “Selling Stockholders” and each Selling Stockholder’s address and other information with respect to the Selling Stockholder (excluding percentages) that appear in the table (and corresponding footnotes) under such heading. The liability under of any Selling Stockholder pursuant to this subsection of each Selling Stockholder (b) shall be limited to an amount equal to not exceed the aggregate gross total net proceeds after underwriting commissions and discounts, but (before deducting expenses, to ) received by such Selling Stockholder from the sale of the Offered Securities sold by such the Selling Stockholder hereunder (with respect to each the “Selling Stockholder, such amount being referred to herein as such Selling Stockholder’s “Sale Stockholder Proceeds”).
Appears in 4 contracts
Samples: Underwriting Agreement (Magnolia Oil & Gas Corp), Underwriting Agreement (Magnolia Oil & Gas Corp), Underwriting Agreement (Magnolia Oil & Gas Corp)
Indemnification of Underwriters by Selling Stockholders. The Each Selling StockholdersStockholder, severally and not jointly, will indemnify and hold harmless each Indemnified PartyUnderwriter and each person, if any, who controls each Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective officers, directors, employees, affiliates and selling agents against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party each Underwriter may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any an untrue statement or alleged untrue statement of any a material fact contained in any part of any the Registration Statement at any timeStatement, any Statutory Preliminary Prospectus as of or the Prospectus, or any timeamendment or supplement thereto, the Final Prospectus or any Issuer Free Writing ProspectusProspectus (taken together with the Disclosure Package), or arise out of or are based upon the omission or alleged omission of to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of the Preliminary Prospectus or the Prospectus, or any prospectusamendment or supplement thereto, or any Issuer Free Writing Prospectus, in the light of the circumstances under which they were made) not misleading), in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, any Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or any such amendment or supplement in reliance upon and in conformity with written information relating to such Selling Stockholder furnished to the Company by such Selling Stockholder expressly for use in the preparation of the answers to Item 7 of Form S-3; and will reimburse each Indemnified Party such Underwriter for any legal or other expenses reasonably incurred by such Indemnified Party Underwriter in connection with investigating or defending against any loss, claim, damage, liability, action, litigation, investigation such action or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to the above claim as such expenses are incurred; provided, however, that each such Selling Stockholder shall not be subject to liable in any such liability only case to the extent that the any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission is based made in the Registration Statement, any Preliminary Prospectus or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the applicable Selling Stockholder InformationCompany by the Underwriter expressly for use therein; and provided, further, that the liability under of a Selling Stockholder pursuant to this subsection (b) shall not exceed the product of each Selling Stockholder shall be limited to an amount equal to (i) the aggregate gross proceeds after underwriting commissions and discounts, but before expenses, to such Selling Stockholder from the sale number of Securities sold by such Selling Stockholder hereunder and (with respect ii) the per share net proceeds to each the Selling Stockholder, such amount being referred to herein Stockholder as such Selling Stockholder’s “Sale Proceeds”)set forth in the Prospectus.
Appears in 3 contracts
Samples: Underwriting Agreement (Clayton Dubilier & Rice Fund v L P), Underwriting Agreement (Graphic Packaging Holding Co), Underwriting Agreement (Clayton Dubilier & Rice Fund v L P)
Indemnification of Underwriters by Selling Stockholders. The Selling StockholdersStockholders , jointly and severally and not jointly, will shall indemnify and hold harmless each Underwriter Indemnified Party, against any and all lossesloss, claimsclaim, damages damage, expense or liabilitiesliability whatsoever (or any action, investigation or proceeding in respect thereof), joint or several, to which such that Underwriter Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage, expense, liability, action, investigation or liabilities (or actions in respect thereof) arise proceeding arises out of or are is based upon (i) any untrue statement or alleged untrue statement of any a material fact contained in any part of any Registration Statement at any timePreliminary Prospectus, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing Prospectus, any “issuer information” filed or arise out required to be filed pursuant to Rule 433(d) of the Rules and Regulations, the Registration Statement, the Prospectus, or are based in any amendment or supplement thereto or in any Marketing Materials in reliance upon and in conformity with the Selling Stockholder Information, or (ii) the omission or alleged omission to state in any Preliminary Prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the Rules and Regulations, the Registration Statement or the Prospectus, or in any amendment or supplement thereto, a material fact in reliance upon and in conformity with the Selling Stockholder Information required to be stated therein or necessary to make the statements therein (in the case of any prospectus, in light of the circumstances under which they were made) not misleadingmisleading , and will shall reimburse each Underwriter Indemnified Party promptly upon demand for any documented legal fees or other expenses reasonably incurred by such that Underwriter Indemnified Party in connection with investigating or preparing to defend or defending against or appearing as a third party witness in connection with any such loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto)proceeding, whether threatened or commenced, and in connection with the enforcement of this provision with respect to the above as such fees and expenses are incurred; provided, however, that each . This indemnity agreement is not exclusive and will be in addition to any liability which the Selling Stockholder shall be subject to such liability only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission is based upon the applicable Selling Stockholder Information; and provided, further, that the liability Stockholders might have under this subsection of each Selling Stockholder Agreement or otherwise, and shall not limit any rights or remedies which may otherwise be limited to an amount equal to the aggregate gross proceeds after underwriting commissions and discountsavailable under this Agreement, but before expenses, to such Selling Stockholder from the sale of Securities sold by such Selling Stockholder hereunder (with respect at law or in equity to each Selling Stockholder, such amount being referred to herein as such Selling Stockholder’s “Sale Proceeds”)Underwriter Indemnified Party.
Appears in 3 contracts
Samples: Underwriting Agreement (Greenlane Holdings, Inc.), Underwriting Agreement (Greenlane Holdings, Inc.), Underwriting Agreement
Indemnification of Underwriters by Selling Stockholders. The Selling Stockholders, severally and not jointly, will indemnify and hold harmless each Indemnified Party, Party against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, 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 any part of any the Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing Prospectus, or arise out of or are based upon the 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, in light of the circumstances under which they were made) not misleading, provided that such untrue statement or alleged untrue statement or omission or alleged omission has been made in reliance upon and in conformity with the Selling Stockholder Information with respect to that Selling Stockholder, and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending against any such loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to the above as such expenses are incurred; provided, however, that each Selling Stockholder shall be subject to such liability only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission is based upon the applicable Selling Stockholder Information; and provided, further, that the liability under this subsection of each Selling Stockholder shall be limited to an amount equal to the aggregate gross proceeds after underwriting commissions (less underwriters’ discounts and discountscommissions, but before other expenses, ) to such Selling Stockholder from the sale of Offered Securities sold by such Selling Stockholder hereunder (with respect to each Selling Stockholder, such amount being referred to herein as such Selling Stockholder’s “Sale Proceeds”).
Appears in 3 contracts
Samples: Underwriting Agreement (Cobalt International Energy, Inc.), Underwriting Agreement (Cobalt International Energy, Inc.), Underwriting Agreement (Cobalt International Energy, Inc.)
Indemnification of Underwriters by Selling Stockholders. The Selling Stockholders, severally and not jointly, will indemnify and hold harmless each Indemnified Party, Party against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, 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 any part of any Registration Statement at any time, any Statutory Prospectus as of any time, or the Final Prospectus or any Issuer Free Writing ProspectusProspectus or Testing-the-Waters Communication, or arise out of or are based upon the 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, in 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 or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to the above as such expenses are incurred; provided, however, that each Selling Stockholder shall will only be subject to liable in any such liability only case to the extent that the any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission is based from any of such documents in reliance upon the applicable and in conformity with written information relating to such Selling Stockholder Informationfurnished to the Company by such Selling Stockholder expressly for use therein, it being understood and agreed that the only such information furnished by any Selling Stockholder consists of the information relating to such Selling Stockholder under the caption “Principal and Selling Stockholders” in any Registration Statement, Statutory Prospectus or the Final Prospectus; and provided, further, that the liability under this subsection of each Selling Stockholder under this Section 8(b) shall be limited to an amount equal to the aggregate gross proceeds after underwriting commissions discounts and discountscommissions, but before expenses, to such Selling Stockholder from the sale of the Optional Securities sold by such indemnifying Selling Stockholder hereunder (with respect pursuant to each Selling Stockholder, such amount being referred to herein as such Selling Stockholder’s “Sale Proceeds”)this Agreement.
Appears in 3 contracts
Samples: Underwriting Agreement (Rocket Fuel Inc.), Underwriting Agreement (Rocket Fuel Inc.), Underwriting Agreement (Rocket Fuel Inc.)
Indemnification of Underwriters by Selling Stockholders. The Each Selling StockholdersStockholder, severally and not jointly, will indemnify and hold harmless each Indemnified PartyUnderwriter, its Affiliates and each person, if any, who controls either Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and their respective officers, directors, and employees, against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party Underwriter, control person, officer, director or employee may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any an untrue statement or alleged untrue statement of any a material fact contained in any part of any the Registration Statement at (or any timeamendment thereto), including any Statutory Prospectus as of any timeinformation deemed to be a part thereof pursuant to Rule 430B, the Final Prospectus or any Issuer Free Writing ProspectusProspectus (when taken together with the General Disclosure Package), the General Disclosure Package or the Prospectus (or any amendment or supplement thereto), or arise out of or are based upon the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus, not misleading in light of the circumstances under in which they were made) not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the General Disclosure Package and the Prospectus, or any such amendment or supplement, in reliance upon and in conformity with written information relating to such Selling Stockholder furnished to the Company by such Selling Stockholder expressly for use in the preparation of the answers to Item 7 of Form S-3; and will reimburse each Indemnified Party Underwriter, control person, officer, director or employee for any legal or other expenses reasonably incurred by such Indemnified Party Underwriter, control person, officer, director or employee in connection with investigating or defending against any loss, claim, damage, liability, action, litigation, investigation such action or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to the above claim as such expenses are incurred; provided, however, that each such Selling Stockholder shall not be subject to liable in any such liability only case to the extent that the any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission is based made in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B, the General Disclosure Package, any Issuer Free Writing Prospectus (when taken together with the General Disclosure Package), the Prospectus (or any amendment or supplement thereto) or the Marketing Materials in reliance upon and in conformity with the applicable Selling Stockholder Underwriter Information; and provided, further, that the liability under of a Selling Stockholder pursuant to this subsection (b) shall not exceed the product of each Selling Stockholder shall be limited to an amount equal to (i) the aggregate gross proceeds after underwriting commissions and discounts, but before expenses, to such Selling Stockholder from the sale number of Securities shares of Common Stock sold by such Selling Stockholder hereunder and (with respect ii) the per share net proceeds to each the Selling Stockholder, such amount being referred to herein Stockholder as such Selling Stockholder’s “Sale Proceeds”)set forth in the Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (HD Supply Holdings, Inc.), Underwriting Agreement (HD Supply Holdings, Inc.)
Indemnification of Underwriters by Selling Stockholders. The (a) Each Selling StockholdersStockholder agrees, severally and not jointly, will to indemnify and hold harmless each Indemnified PartyUnderwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or and liabilities (including, without limitation, any legal or actions other expenses reasonably incurred in respect thereofconnection with defending or investigating any such action or claim) arise out of or are based upon caused by any untrue statement or alleged untrue statement of any a material fact contained in any part of any the Registration Statement at or any timeamendment thereof, any Statutory Prospectus as of any timepreliminary prospectus, the Final Time of Sale Disclosure Package, the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or any Issuer Issuer-Represented Free Writing Prospectus, or arise out of or are based upon the caused by any omission or alleged omission of to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus, in light of the circumstances under which they were made) not misleading, but only with reference to information relating to such Selling Stockholder furnished in writing by or on behalf of such Selling Stockholder expressly for use therein.
(b) Subject to the procedures set forth in Section 8.3(c), each of the Selling Stockholders shall, jointly and will reimburse severally, indemnify and hold harmless each Indemnified Party for Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred by such Indemnified Party in connection with defending or investigating any such action or defending against claim) caused by a breach of any lossof the representations and warranties of the Company contained in Article I of this Agreement.
(c) In the event that any Underwriter or any person, claimif any, damagewho "controls" any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act shall have properly and in good faith made any request for indemnification pursuant to Section 8.1 and the Company (i) shall have failed to pay such amount or otherwise failed to satisfy its obligations set forth in Section 8.1 within 30 days of such request, liabilityor (ii) shall be, actionin such indemnified party's bona fide and reasonable judgment, litigationfinancially, investigation legally or proceeding whatsoever (whether otherwise unable to satisfy such obligations, each of the Selling Stockholders shall, jointly and severally, promptly indemnify and hold harmless such indemnified party to the same extent as the Company shall be required to indemnify such indemnified party, or not shall contribute to the amount paid or payable by such Indemnified Party indemnified party to the same extent as the Company shall be required to contribute to such amount in the event indemnification is a party theretounavailable or is insufficient as contemplated by Section 8.8 or 8.9. In the event that the Selling Stockholders incur any costs or expenses pursuant to the terms of Section 8.3(b), whether threatened or commenced, and in connection with (i) the enforcement of this provision with respect to the above as such expenses are incurred; provided, however, that each Selling Stockholder Company shall be subject obligated to reimburse the Selling Stockholders for such liability only costs and expenses and (ii) the Selling Stockholders shall have full rights and remedies to the extent that the untrue statement or alleged untrue statement or omission or alleged omission is based upon the applicable Selling Stockholder Information; and provided, further, that the liability under this subsection of each Selling Stockholder shall be limited to an amount equal to the aggregate gross proceeds after underwriting commissions and discounts, but before expenses, to seek such Selling Stockholder from the sale of Securities sold by such Selling Stockholder hereunder (with respect to each Selling Stockholder, such amount being referred to herein as such Selling Stockholder’s “Sale Proceeds”)reimbursement.
Appears in 2 contracts
Samples: Underwriting Agreement (Crocs, Inc.), Underwriting Agreement (Crocs, Inc.)
Indemnification of Underwriters by Selling Stockholders. The Each of the Selling Stockholders, severally and not jointly, will agrees to indemnify and hold harmless each Indemnified PartyUnderwriter, its Affiliates, its selling agents and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all lossesloss, claimsclaim, damages damage, expense or liabilitiesliability whatsoever (or any action, investigation or proceeding in respect thereof), joint or several, to which such Indemnified Party party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage, expense, liability, action, investigation or liabilities (or actions in respect thereof) arise proceeding arises out of or are is based upon (i) any untrue statement or alleged untrue statement of any a material fact contained in any part of any Registration Statement at any timePreliminary Prospectus, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing Prospectus, any “issuer information” filed or arise out required to be filed pursuant to Rule 433(d) of the Rules and Regulations, the Registration Statement, the Prospectus, or are based upon in any amendment or supplement thereto or in any Marketing Materials, or (ii) the omission or alleged omission to state in any Preliminary Prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the Rules and Regulations, the Registration Statement or the Prospectus, or in any amendment or supplement thereto or document incorporated by reference therein, a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus, in light of the circumstances under which they were made) not misleading, and will reimburse but in each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to the above as such expenses are incurred; provided, however, that each Selling Stockholder shall be subject to such liability case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission is based was made in reliance upon the applicable and in conformity with its Selling Stockholder Information; , and providedshall reimburse, furtherpro rata with all other indemnifying parties based on the aggregate number of shares of Stock sold hereunder, each such party promptly upon demand for any legal or other expenses reasonably incurred by that the party in connection with investigating or preparing to defend or defending against or appearing as a third party witness in connection with any such loss, claim, damage, liability, action, investigation or proceeding, as such fees and expenses are incurred. The aggregate liability under this subsection Section of each Selling Stockholder shall be limited to an amount equal to the aggregate gross proceeds after underwriting commissions and discounts, but before expenses, to such Selling Stockholder from the sale of Securities sold by such Selling Stockholder hereunder (with respect to each Selling Stockholder, such amount being referred to herein as such Selling Stockholder’s “Sale Proceeds”)hereunder.
Appears in 1 contract
Indemnification of Underwriters by Selling Stockholders. The Each Selling StockholdersStockholder, severally and not jointly, will indemnify and hold harmless each Indemnified PartyUnderwriter and each person, if any, who controls each Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective officers, directors, employees, affiliates and selling agents against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party Underwriter may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any an untrue statement or alleged untrue statement of any a material fact contained in any part of any the Registration Statement at any timeStatement, any Statutory Preliminary Prospectus as of or the Prospectus, or any timeamendment or supplement thereto, the Final Prospectus or any Issuer Free Writing ProspectusProspectus (taken together with the Disclosure Package), or arise out of or are based upon the omission or alleged omission of to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of the Preliminary Prospectus or the Prospectus, or any prospectusamendment or supplement thereto, or any Issuer Free Writing Prospectus, in the light of the circumstances under which they were made) not misleading), in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, any Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or any such amendment or supplement in reliance upon and in conformity with written information relating to such Selling Stockholder furnished to the Company by such Selling Stockholder expressly for use in the preparation of the answers to Item 7 of Form S-3; and will reimburse each Indemnified Party such Underwriter for any legal or other expenses reasonably incurred by such Indemnified Party Underwriter in connection with investigating or defending against any loss, claim, damage, liability, action, litigation, investigation such action or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to the above claim as such expenses are incurred; provided, however, that each such Selling Stockholder shall not be subject to liable in any such liability only case to the extent that the any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission is based made in the Registration Statement, any Preliminary Prospectus or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the applicable Selling Stockholder InformationCompany by the Underwriters expressly for use therein; and provided, further, that the liability under of a Selling Stockholder pursuant to this subsection (b) shall not exceed the product of each Selling Stockholder shall be limited to an amount equal to (i) the aggregate gross proceeds after underwriting commissions and discounts, but before expenses, to such Selling Stockholder from the sale number of Securities sold by such Selling Stockholder hereunder and (with respect ii) the per share net proceeds to each the Selling Stockholder, such amount being referred to herein Stockholder as such Selling Stockholder’s “Sale Proceeds”)set forth in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Graphic Packaging Holding Co)
Indemnification of Underwriters by Selling Stockholders. The (a) Each Selling StockholdersStockholder agrees, severally and not jointly, will to indemnify and hold harmless each Indemnified PartyUnderwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or and liabilities (including, without limitation, any legal or actions other expenses reasonably incurred in respect thereofconnection with defending or investigating any such action or claim) arise out of or are based upon caused by any untrue statement or alleged untrue statement of any a material fact contained in any part of any the Registration Statement at or any timeamendment thereof, any Statutory Prospectus as of any timepreliminary prospectus, the Final Time of Sale Disclosure Package, the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or any Issuer Issuer-Represented Free Writing Prospectus, or arise out of or are based upon the caused by any omission or alleged omission of to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus, in light of the circumstances under which they were made) not misleading, but only with reference to information relating to such Selling Stockholder furnished in writing by or on behalf of such Selling Stockholder expressly for use therein.
(b) Subject to the procedures set forth in Section 8.3(c), each of the Selling Stockholders shall, jointly and will reimburse severally, indemnify and hold harmless each Indemnified Party for Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred by such Indemnified Party in connection with defending or investigating any such action or defending against claim) caused by a breach of any lossof the representations and warranties of the Company contained in Article I of this Agreement.
(c) In the event that any Underwriter or any person, claimif any, damagewho "controls" any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act shall have properly and in good faith made any request for indemnification pursuant to Section 8.1 and the Company (i) shall have failed to pay such amount or otherwise failed to satisfy its obligations set forth in Section 8.1 within 30 days of such request, liabilityor (ii) shall be, actionin such indemnified party's bona fide and reasonable judgment, litigationfinancially, investigation legally or proceeding whatsoever (whether otherwise unable to satisfy such obligations, each of the Selling Stockholders shall, jointly and severally, promptly indemnify and hold harmless such indemnified party to the same extent as the Company shall be required to indemnify such indemnified party, or not shall contribute to the amount paid or payable by such Indemnified Party indemnified party to the same extent as the Company shall be required to contribute to such amount in the event indemnification is a party theretounavailable or is insufficient as contemplated by Sections 8.7 or 8.8. In the event that the Selling Stockholders incur any costs or expenses pursuant to the terms of Section 8.3(b), whether threatened or commenced, and in connection with (i) the enforcement of this provision with respect to the above as such expenses are incurred; provided, however, that each Selling Stockholder Company shall be subject obligated to reimburse the Selling Stockholders for such liability only costs and expenses and (ii) the Selling Stockholders shall have full rights and remedies to the extent that the untrue statement or alleged untrue statement or omission or alleged omission is based upon the applicable Selling Stockholder Information; and provided, further, that the liability under this subsection of each Selling Stockholder shall be limited to an amount equal to the aggregate gross proceeds after underwriting commissions and discounts, but before expenses, to seek such Selling Stockholder from the sale of Securities sold by such Selling Stockholder hereunder (with respect to each Selling Stockholder, such amount being referred to herein as such Selling Stockholder’s “Sale Proceeds”)reimbursement.
Appears in 1 contract
Samples: Underwriting Agreement (Crocs, Inc.)
Indemnification of Underwriters by Selling Stockholders. The Each Selling StockholdersStockholder, severally and not jointly, will agrees to indemnify and hold harmless each Indemnified PartyUnderwriter, against its Affiliates and selling agents and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act to the extent and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, 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 any part of any Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing Prospectus, or arise out of or are based upon the 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, manner set forth in 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 or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever clauses (whether or not such Indemnified Party is a party theretoa)(i), whether threatened or commenced, (ii) and in connection with the enforcement of this provision with respect to the above as such expenses are incurred(iii) above; provided, however, provided that each Selling Stockholder shall be subject to such liability liable only to the extent that the such untrue statement or alleged untrue statement or omission or alleged omission is based has been made in the Registration Statement, any preliminary prospectus, the General Disclosure Package, the Prospectus (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus in reliance upon and in conformity with the applicable Selling Stockholder Information; and provided, further, that the liability under this subsection of each Selling Stockholder shall be limited to an amount equal to the aggregate gross proceeds (after deducting underwriting commissions and discounts, discounts but before expenses), to such Selling Stockholder from the sale of Securities sold by such Selling Stockholder hereunder (hereunder; provided, however, that no Selling Stockholder shall be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, any preliminary prospectus, the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus in reliance upon and in conformity with respect to each Selling Stockholder, such amount being referred to herein as such Selling Stockholder’s “Sale Proceeds”)the Underwriter Information.
Appears in 1 contract
Samples: Underwriting Agreement (Southeastern Grocers, Inc.)
Indemnification of Underwriters by Selling Stockholders. The Each Selling StockholdersStockholder, severally and not jointly, will indemnify and hold harmless each Indemnified PartyUnderwriter and each person, if any, who controls each Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective officers, directors, employees, affiliates and selling agents against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party each Underwriter may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any an untrue statement or alleged untrue statement of any a material fact contained in any part of any the Registration Statement at any timeStatement, any Statutory Preliminary Prospectus as of or the Prospectus, or any timeamendment or supplement thereto, the Final Prospectus or any Issuer Free Writing ProspectusProspectus (taken together with the Disclosure Package), or arise out of or are based upon the omission or alleged omission of to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of the Preliminary Prospectus or the Prospectus, or any prospectusamendment or supplement thereto, or any Issuer Free Writing Prospectus, in the light of the circumstances under which they were made) not misleading), in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, any Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or any such amendment or supplement in reliance upon and in conformity with written information relating to such Selling Stockholder furnished to the Company by such Selling Stockholder expressly for use in the preparation of the answers to Item 7 of Form S-3; and will reimburse each Indemnified Party such Underwriter for any legal or other expenses reasonably incurred by such Indemnified Party Underwriter in connection with investigating or defending against any loss, claim, damage, liability, action, litigation, investigation such action or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to the above claim as such expenses are incurred; provided, however, that each such Selling Stockholder shall not be subject to liable in any such liability only case to the extent that the any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission is based made in the Registration Statement, any Preliminary Prospectus or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the applicable Selling Stockholder InformationCompany by the Underwriters expressly for use therein; and provided, further, that the liability under of a Selling Stockholder pursuant to this subsection (b) shall not exceed the product of each Selling Stockholder shall be limited to an amount equal to (i) the aggregate gross proceeds after underwriting commissions and discounts, but before expenses, to such Selling Stockholder from the sale number of Securities sold by such Selling Stockholder hereunder and (with respect ii) the per share net proceeds to each the Selling Stockholder, such amount being referred to herein Stockholder as such Selling Stockholder’s “Sale Proceeds”)set forth in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Graphic Packaging Holding Co)
Indemnification of Underwriters by Selling Stockholders. The (a) Each Selling StockholdersStockholder agrees, severally and not jointly, will to indemnify and hold harmless each Indemnified PartyUnderwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or and liabilities (including, without limitation, any legal or actions other expenses reasonably incurred in respect thereofconnection with defending or investigating any such action or claim) arise out of or are based upon caused by any untrue statement or alleged untrue statement of any a material fact contained in any part of any the Registration Statement at or any timeamendment thereof, any Statutory preliminary prospectus or the Prospectus (as of amended or supplemented if the Company shall have furnished any time, the Final Prospectus amendments or any Issuer Free Writing Prospectussupplements thereto), or arise out of or are based upon the caused by any omission or alleged omission of to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus, in 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 but only with investigating or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect reference to the above as such expenses are incurred; provided, however, that each Selling Stockholder shall be subject to such liability only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission is based upon the applicable Selling Stockholder Information; and provided, further, that the liability under this subsection of each Selling Stockholder shall be limited to an amount equal to the aggregate gross proceeds after underwriting commissions and discounts, but before expenses, information relating to such Selling Stockholder from the sale furnished in writing by or on behalf of Securities sold by such Selling Stockholder hereunder expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(with respect b) In the event that any Underwriter or any person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act shall have properly made any request for indemnification pursuant to Section 8.1 and the Company (i) shall have failed to pay such amount or otherwise failed to satisfy its obligations set forth in Section 8.1 within 30 days of such request, or (ii) shall be, in such indemnified party's reasonable judgment, unable or unwilling to satisfy such obligations, each Selling StockholderOfficer shall, severally and not jointly, promptly indemnify and hold harmless such indemnified party to the same extent as the Company shall be required to indemnify such indemnified party, or shall contribute to the amount paid or payable by such indemnified party to the same extent as the Company shall be required to contribute to such amount being referred to herein in the event indemnification is unavailable or is insufficient as such Selling Stockholder’s “Sale Proceeds”)contemplated by Section 8.8 or 8.9.
Appears in 1 contract
Indemnification of Underwriters by Selling Stockholders. The Each Selling StockholdersStockholder severally, severally and not jointly, will agrees to indemnify and hold harmless each Indemnified PartyUnderwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all lossesloss, claimsliability, damages or liabilitiesclaim, joint or severaldamage and expense whatsoever, to which such Indemnified Party may become subjectas incurred, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise arising out of or are based upon any untrue statement or alleged untrue statement of any a material fact contained in any part of any the Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus (or any Issuer Free Writing Prospectusamendment thereto), including the Rule 430A Information or arise out of or are based upon the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the case of any prospectus, in light of the circumstances under which they were made) , not misleading;
(ii) against any and all loss, liability, claim, damage and will reimburse each Indemnified Party for expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any legal litigation, or other expenses any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, provided that (subject to Section 6(e) below) any such settlement is effected with the written consent of the Selling Stockholder; and
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred by such Indemnified Party in connection with investigating investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; PROVIDED, HOWEVER, that this indemnity agreement shall only apply to any loss, liability, claim, damage, liability, action, litigation, investigation damage or proceeding whatsoever expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder expressly for use in the Registration Statement (whether or not such Indemnified Party is a party any amendment thereto), whether threatened including the Rule 430A Information or commenced, and in connection with any preliminary prospectus or the enforcement of this provision with respect to the above as such expenses are incurredProspectus (or any amendment or supplement thereto); provided, however, provided that each Selling Stockholder shall be subject liable in any such case to such liability the extent but only to the extent that the untrue statement loss, claim, damage or alleged liability of the Underwriters results from an untrue statement or omission of a material fact contained in the preliminary prospectus or alleged omission is based upon preliminary prospectus supplement which was identified in writing prior to the applicable effective date of the registration statement to such Underwriter and corrected in the prospectus or prospectus supplement as then amended, and such correction would have cured the defect giving rise to such loss, claim, damage or liability. Notwithstanding the provisions of this Section 6(b), the aggregate liability of any Selling Stockholder Information; and provided, further, that the liability under this subsection Section 6(b) shall not exceed the proceeds (net of each Selling Stockholder shall be limited to an amount equal to the aggregate gross proceeds after underwriting commissions and discounts, discounts but before expenses, to ) received by such Selling Stockholder from the sale of Initial Securities sold under this Agreement. The Underwriters and the Company acknowledge that the statements specifically relating to each Selling Stockholder under the caption "Principal and Selling Stockholders" in the Prospectus constitute the only information furnished in writing by or on behalf of such Selling Stockholder expressly for use in the Registration Statement as originally filed or in any amendment thereof, any related Preliminary or the Prospectus or in any amendment thereof or supplement thereto, as the case may be. This indemnity agreement will be in addition to any liability which the Selling Stockholders may otherwise have, including under this Agreement; PROVIDED, however, that in no event shall the aggregate liability of any Selling Stockholder for any breach of the representations and warranties contained in Section 1(b) (when combined with any liability under the indemnity above) exceed the proceeds (net of underwriting discounts but before expenses) received by such Selling Stockholder hereunder (with respect to each Selling Stockholder, such amount being referred to herein as such Selling Stockholder’s “Sale Proceeds”)from the sale of Shares under this Agreement.
Appears in 1 contract
Indemnification of Underwriters by Selling Stockholders. The Underwriters shall pursue any and all claims arising under this Agreement or otherwise ("Claims") by seeking recovery from the Company under Section 6(a) prior to pursuing any Claim against the Selling StockholdersStockholders under this Section 6(b), provided that if any such Claim is not satisfied by the Company within a period of 30 days following a final judgment from a court of first instance having jurisdiction that the Underwriters are entitled to indemnity under this Agreement with respect to any such Claim (the "Final Judgment"), the Selling Stockholders agree severally in proportion to the number of Initial Securities set forth opposite their respective names in Schedule B hereto and not jointly, will to indemnify and hold harmless each Indemnified PartyUnderwriter, its partners, directors and officers, and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all lossesloss, claimsliability, damages or liabilitiesclaim, joint or severaldamage and expense whatsoever, to which such Indemnified Party may become subjectas incurred, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise arising out of or are based upon any untrue statement or alleged untrue statement of any a material fact contained in any part of any the Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus (or any Issuer Free Writing Prospectusamendment thereto), including the Rule 430A Information and the Rule 434 Information, if applicable, or arise out of or are based upon the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus, the Prospectus or the German Listing Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the case of any prospectus, in light of the circumstances under which they were made) , not misleading;
(ii) against any and all loss, liability, claim, damage and will reimburse each Indemnified Party for expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any legal litigation, or other expenses any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 6(e) below) any such settlement is effected with the written consent of the Selling Stockholders, which shall not be unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representatives), reasonably incurred by such Indemnified Party in connection with investigating investigating, preparing or defending against any loss, claim, damage, liability, action, litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever (whether based upon any such untrue statement or not omission, or any such Indemnified Party is a party thereto)alleged untrue statement or omission, whether threatened or commenced, and in connection with the enforcement of this provision with respect to the above as extent that any such expenses are incurredexpense is not paid under (i) or (ii) above; provided, however, that each Selling Stockholder this indemnity agreement shall be subject not apply to such liability only any loss, -------- ------- liability, claim, damage or expense to the extent that the arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company on the Selling Stockholders by any Underwriter through the Representatives expressly for use in the Registration Statement (or alleged omission is based upon any amendment thereto), including the applicable Selling Stockholder Rule 430A Information and the Rule 434 Information, if applicable, or any preliminary prospectus, the Prospectus or the German Listing Prospectus (or any amendment or supplement thereto); and provided, further, that the liability Underwriters may exercise this right to first seek -------- ------- to obtain payment from the Company and thereafter to obtain payment from the Selling Stockholders irrespective of whether an appeal of such Final Judgment is pending. The Underwriters shall, however, be relieved of their obligation to first obtain a Final Judgment, seek to obtain payment from the Company with respect to such Final Judgment or, having sought such payment, to wait such 30 days after failure by the Company to immediately satisfy such Final Judgment if (i) the Company files a petition for relief under the United States Bankruptcy code (the "Bankruptcy Code"), (ii) an order for relief is entered into against the Company in an involuntary case under the Bankruptcy Code and continues for 45 consecutive days, (iii) the Company makes an assignment for the benefit of its creditors, or (iv) any court orders or approves the appointment of a receiver or custodian for the Company or a substantial portion of its assets and such order or approval continues for 45 consecutive days. provided, further, that notwithstanding the foregoing provisions, (i) the -------- ------- aggregate amount of any Selling Stockholder's indemnity and contribution obligations under this subsection of each Selling Stockholder Section 6(b) and Section 7 shall be limited to an amount equal to not exceed the aggregate gross net cash proceeds after underwriting commissions and discounts, but before expenses, to received by such Selling Stockholder from the its sale of Securities sold by Common Stock pursuant to this Agreement. The foregoing indemnity agreement is in addition to any liability which any such Selling Stockholder hereunder (with respect may otherwise have to each Selling Stockholderthe Underwriters or any such officer, such amount being referred to herein as such Selling Stockholder’s “Sale Proceeds”)employee or controlling person.
Appears in 1 contract
Indemnification of Underwriters by Selling Stockholders. The Each Selling StockholdersStockholder, severally and not jointly, will indemnify and hold harmless each Indemnified PartyUnderwriter, its Affiliates and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and their respective officers, directors, and employees, against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party Underwriter, control person, officer, director or employee may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any an untrue statement or alleged untrue statement of any a material fact contained in any part of any the Registration Statement at (or any timeamendment thereto), any Statutory Prospectus as of any timeincluding the Rule 430A Information, the Final Prospectus or any Issuer Free Writing ProspectusProspectus (when taken together with the General Disclosure Package), the General Disclosure Package or the Prospectus (or any amendment or supplement thereto), or arise out of or are based upon the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus, not misleading in light of the circumstances under in which they were made) not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the General Disclosure Package and the Prospectus, or any such amendment or supplement, in reliance upon and in conformity with written information relating to such Selling Stockholder furnished to the Company by such Selling Stockholder expressly for use in the preparation of the answers to Item 7 of Form S-1; and will reimburse each Indemnified Party Underwriter, control person, officer, director or employee for any legal or other expenses reasonably incurred by such Indemnified Party Underwriter, control person, officer, director or employee in connection with investigating or defending against any loss, claim, damage, liability, action, litigation, investigation such action or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to the above claim as such expenses are incurred; provided, however, that each such Selling Stockholder shall not be subject to liable in any such liability only case to the extent that the any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission is based made in the Registration Statement (or any amendment thereto), including the 430A Information, the General Disclosure Package, any Issuer Free Writing Prospectus (when taken together with the General Disclosure Package), the Prospectus (or any amendment or supplement thereto) or the Marketing Materials in reliance upon and in conformity with the applicable Selling Stockholder Underwriter Information; and provided, further, that the liability under of a Selling Stockholder pursuant to this subsection (b) shall not exceed the product of each Selling Stockholder shall be limited to an amount equal to (i) the aggregate gross proceeds after underwriting commissions and discounts, but before expenses, to such Selling Stockholder from the sale number of Securities shares of Common Stock sold by such Selling Stockholder hereunder and (with respect ii) the per share net proceeds to each the Selling Stockholder, such amount being referred to herein Stockholder as such Selling Stockholder’s “Sale Proceeds”)set forth in the Prospectus.
Appears in 1 contract
Indemnification of Underwriters by Selling Stockholders. The Selling Stockholders, severally and not jointlyin proportion to the number of shares of Securities to be sold by each of them pursuant to this Agreement, will agree to indemnify and hold harmless each Indemnified PartyUnderwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, to the extent and in the manner set forth in clauses (i), (ii) and (iii), as follows:
(i) against any and all lossesloss, claimsliability, damages or liabilitiesclaim, joint or severaldamage and expense whatsoever, to which such Indemnified Party may become subjectas incurred, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise arising out of or are based upon any untrue statement or alleged untrue statement of any a material fact contained in any part of any the Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus (or any Issuer Free Writing Prospectusamendment thereto), including the Rule 430A Information and the Rule 434 Information, if applicable, or arise out of or are based upon the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the case of any prospectus, in 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 or defending ;
(ii) against any and all loss, liability, claim, damagedamage and expense whatsoever, liabilityas incurred, action, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever (whether or not based upon any such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to the above as such expenses are incurred; provided, however, that each Selling Stockholder shall be subject to such liability only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission omission; provided that (subject to Section 6(e) below) any such settlement is based upon effected with the applicable written consent of the Selling Stockholder InformationStockholders; and
(iii) against any and providedall expense whatsoever, furtheras incurred (including, that subject to Section 6(d) hereof, the liability under this subsection reasonable fees and disbursements of each Selling Stockholder shall be limited to an amount equal to the aggregate gross proceeds after underwriting commissions and discounts, but before expenses, to such Selling Stockholder from the sale of Securities sold counsel chosen by such Selling Stockholder hereunder (with respect to each Selling Stockholder, such amount being referred to herein as such Selling Stockholder’s “Sale Proceeds”).Merrill
Appears in 1 contract
Samples: Purchase Agreement (Bally Total Fitness Holding Corp)