Indemnification Rights. (i) In the event of any registration or offer and sale of any securities of the Company under the Securities Act pursuant to this Article III, the Company will, and hereby agrees to, and hereby does, indemnify and hold harmless, to the fullest extent permitted by law, the Stockholder, its directors, officers, employees, stockholders, members or general and limited partners, the Third Party Stockholder, in the offering or sale of such securities (and its directors, officers, employees, stockholders, members or general and limited partners), underwriter or Qualified Independent Underwriter, if any, in the offering or sale of such securities, each officer, director, employee, stockholder, managing director, affiliate, representative, successor, assign or partner of such underwriter or Qualified Independent Underwriter, and each other Person, if any, who controls such Third Party Stockholder or any such underwriter or Qualified Independent Underwriter within the meaning of the Securities Act, from and against any and all losses, claims, damages or liabilities, joint or several, actions or proceedings (whether commenced or threatened) and expenses (including reasonable fees of counsel and any amounts paid in any settlement effected with the Company’s consent, which consent shall not be unreasonably withheld or delayed) to which each such indemnified party may become subject under the Securities Act or otherwise in respect thereof (collectively, “Claims”), insofar as such Claims arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement under which such securities were registered under the Securities Act or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary, final or summary Prospectus or any amendment or supplement thereto, together with the documents incorporated by reference therein, or any Free Writing Prospectus utilized in connection therewith, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration, and the Company will reimburse any such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurred; provided, that the Company shall not be liable to any such indemnified party in any such case to the extent such Claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact or omission or alleged omission of a material fact made in such Registration Statement or amendment thereof or supplement thereto or in any such Prospectus or any preliminary, final or summary Prospectus or Free Writing Prospectus in reliance upon and in strict conformity with written information furnished to the Company by or on behalf of such indemnified party specifically for use therein. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party and shall survive the transfer of such securities by the Stockholder or the Third Party Stockholder. (ii) The Stockholder shall indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 3.9(a)(i)) to the extent permitted by law, the Company, its officers and directors, each Person controlling the Company within the meaning of the Securities Act and the Third Party Stockholder, if applicable, and its directors, officers, stockholders, managing directors, agents, affiliates, consultants, representatives, successors, assigns or general and limited partners and respective controlling Persons with respect to any untrue statement or alleged untrue statement of any material fact in, or omission or alleged omission of any material fact from, such Registration Statement, any preliminary, final or summary Prospectus contained therein, or any amendment or supplement thereto, or any Free Writing Prospectus utilized in connection therewith, if such statement or alleged statement or omission or alleged omission was made in reliance upon and in strict conformity with written information furnished to the Company or its representatives by or on behalf of the Stockholder or underwriter or Qualified Independent Underwriter, if any, specifically for use therein, and the Stockholder shall reimburse such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurred; provided, that the aggregate amount which the Stockholder shall be required to pay pursuant to this Section 3.9 (including pursuant to indemnity, contribution or otherwise) shall in no case be greater than the amount of the net proceeds received by the Stockholder upon the sale of the Registrable Securities pursuant to the Registration Statement giving rise to such Claim; provided, further, that such Stockholder shall not be liable in any such case to the extent that prior to the filing of any such Registration Statement or Prospectus or amendment thereof or supplement thereto, or any Free Writing Prospectus utilized in connection therewith, such Stockholder has furnished in writing to the Company information expressly for use in such Registration Statement or Prospectus or any amendment thereof or supplement thereto or Free Writing Prospectus which corrected or made not misleading information previously furnished to the Company. (iii) Indemnification similar to that specified in Sections 3.9(a)(i) and 3.9(a)(ii) (with appropriate modifications) shall be given by the Company and the Stockholder with respect to any required registration or other qualification of securities under any applicable securities and state “blue sky” laws. (iv) If for any reason the foregoing indemnity is unavailable, unenforceable or is insufficient to hold harmless an indemnified party under Sections 3.9(a)(i), 3.9(a)(ii) or 3.9(a)(iii), then each applicable indemnifying party shall contribute to the amount paid or payable to such indemnified party as a result of any Claim in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and the indemnified party, on the other hand, with respect to such Claim. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. If, however, the allocation provided in the second preceding sentence is not permitted by applicable Law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults but also the relative benefits of the indemnifying party and the indemnified party as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if any contribution pursuant to this Section 3.9(a)(iv) were to be determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the preceding sentences of this Section 3.9(a)(iv). The amount paid or payable in respect of any Claim shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. Notwithstanding anything in this Section 3.9(a)(iv) to the contrary, no indemnifying party (other than the Company) shall be required pursuant to this Section 3.9(a)(iv) to contribute any amount greater than the amount of the net proceeds received by such indemnifying party from the sale of Registrable Securities pursuant to the Registration Statement giving rise to such Claim, less the amount of any indemnification payment made by such indemnifying party pursuant to Sections 3.9(a)(ii) and 3.9(a)(iii). In addition, neither the Stockholder nor any Affiliate thereof shall be required to pay any amount under this Section 3.9(a)(iv) unless such Person or entity would have been required to pay an amount pursuant to Section 3.9(a)(ii) if it had been applicable in accordance with its terms. (v) The indemnity and contribution agreements contained herein shall be in addition to any other rights to indemnification or contribution which any indemnified party may have pursuant to law or contract and shall remain operative and in full force and effect regardless of any investigation made or omitted by or on behalf of any indemnified party and shall survive the transfer of the Registrable Securities by any such party. (vi) The indemnification and contribution required by this Section 3.9 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 expense, loss, damage or liability is incurred; provided, that the recipient thereof hereby undertakes to repay such payments if and to the extent it shall be determined by a court of competent jurisdiction that such recipient is not entitled to such payment hereunder.
Appears in 2 contracts
Samples: Stockholders’ Agreement (INC Research Holdings, Inc.), Stockholders' Agreement (INC Research Holdings, Inc.)
Indemnification Rights. (i) In the event of any registration or other offer and sale of any securities of the Company under the Securities Act pursuant to this Article IIIII, the Company will, and hereby agrees to, and hereby does, shall indemnify and hold harmlessharmless the Shareholder and each Person, if any, that controls the Shareholder within the meaning of Section 15 of the Securities Act (each a “controlling person”), their respective officers, directors, employees, stockholders, general and limited partners, members, Representatives and Affiliates, and each controlling person of each Affiliate of any of the foregoing Persons (each, a “Shareholder Registration Rights Indemnitee”), to the fullest extent permitted by law, the Stockholder, its directors, officers, employees, stockholders, members or general and limited partners, the Third Party Stockholder, in the offering or sale of such securities (and its directors, officers, employees, stockholders, members or general and limited partners), underwriter or Qualified Independent Underwriter, if any, in the offering or sale of such securities, each officer, director, employee, stockholder, managing director, affiliate, representative, successor, assign or partner of such underwriter or Qualified Independent Underwriter, and each other Person, if any, who controls such Third Party Stockholder or any such underwriter or Qualified Independent Underwriter within the meaning of the Securities Actlawful, from and against any and all lossesDamages caused by, claimsrelating to, damages arising out of, or liabilities, joint or several, actions or proceedings in connection with (whether commenced or threatened) and expenses (including reasonable fees of counsel and any amounts paid in any settlement effected with the Company’s consent, which consent shall not be unreasonably withheld or delayed) to which each such indemnified party may become subject under the Securities Act or otherwise in respect thereof (collectively, “Claims”), insofar as such Claims arise out of or are based upon (iA) any untrue statement of material fact (or alleged untrue statement of a material fact fact) contained in any Disclosure Package, any Registration Statement under which such securities were registered under the Securities Act Statement, any Prospectus (including any preliminary Prospectus), any Free Writing Prospectus, or the in any amendment or supplement thereto, or (B) any omission or alleged omission to state therein a any material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary, final or summary Prospectus or any amendment or supplement thereto, together with the documents incorporated by reference therein, or any Free Writing Prospectus utilized in connection therewith, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration, and the Company will reimburse any such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurredmisleading; provided, provided that the Company shall not be liable to any such indemnified party in any such case a Shareholder Registration Rights Indemnitee to the extent that any such Claim arises out of or is based upon Damages are directly caused by any untrue statement or omission (or alleged untrue statement of a material fact or omission or alleged omission of a material fact omission) made in such Disclosure Package, Registration Statement Statement, Prospectus (including any preliminary Prospectus), Free Writing Prospectus, or any amendment thereof or supplement thereto or in any such Prospectus or any preliminarythereto, final or summary Prospectus or Free Writing Prospectus in reliance upon and in strict conformity with written information about the Shareholder furnished to the Company by or on behalf of such indemnified party specifically the Shareholder expressly for use therein. This indemnity agreement shall be in addition to any liability which the Company may otherwise have. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party any Shareholder Registration Rights Indemnitee and shall survive the transfer of such securities by the Stockholder or the Third Party StockholderShareholder.
(ii) The Stockholder Shareholder shall indemnify and hold harmless (in the same manner Company and each of its officers who execute any of the Company’s filings with the SEC pursuant to the same extent as set forth in Section 3.9(a)(i)) to the extent permitted by law, the Company, its officers and directors, each Person controlling the Company within the meaning of Exchange Act or the Securities Act and the Third Party StockholderAct, if applicable, and its directors, officersofficers and employees (each, stockholdersa “Company Registration Rights Indemnitee”), managing directorsto the fullest extent lawful, agentsfrom and against any and all Damages directly caused by, affiliatesrelating to, consultantsarising out of, representatives, successors, assigns or general and limited partners and respective controlling Persons in connection with respect to (A) any untrue statement of material fact (or alleged untrue statement of a material fact) contained in any material fact inDisclosure Package, or omission or alleged omission of any material fact from, such Registration Statement, any preliminaryProspectus (including any preliminary Prospectus), final any Free Writing Prospectus or summary Prospectus contained therein, or in any amendment or supplement theretothereto or (B) any omission (or alleged omission) to state therein any material fact required to be stated therein or necessary to make the statements therein, or any Free Writing Prospectus utilized in connection therewithlight of the circumstances under which they were made, if not misleading, in each case, to the extent that such untrue statement or alleged statement or omission or alleged omission was made in reliance upon and in strict conformity with written information furnished to the Company or its representatives by or on behalf of the Stockholder or underwriter or Qualified Independent Underwriter, if any, specifically Shareholder expressly for use therein, and the Stockholder shall reimburse such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurred; provided, however, that the aggregate amount which the Stockholder shall be required to pay pursuant to this Section 3.9 (including pursuant to indemnity, contribution or otherwise) shall in no case be greater than event shall the amount obligations of the Shareholder hereunder exceed the net proceeds received by the Stockholder upon it from the sale of the its Registrable Securities pursuant related to the Registration Statement giving rise matter in which Damages are sought. The Company and the Shareholder hereby acknowledge and agree that, unless otherwise expressly agreed to such Claim; providedin writing by the Shareholder to the contrary, furtherfor all purposes of this Agreement, that such Stockholder shall not the only information furnished or to be liable furnished to the Company for use in any such case to the extent that prior to the filing of any such Registration Statement registration statement, preliminary, final or Prospectus summary prospectus or amendment thereof or supplement thereto, or any Free Writing Prospectus utilized free writing prospectus, are statements specifically relating to (w) the beneficial ownership of the Common Shares by the Shareholder and its Affiliates as disclosed in connection therewiththe section of such document entitled “Selling Shareholders” or “Principal and Selling Shareholders” or other variations thereof, (x) the name and address of the Shareholder, (y) any information provided by or on behalf of the Shareholder for any plan of distribution prepared in accordance with Item 508 of Regulation S-K and (z) any free writing prospectus prepared by the Shareholder for purposes of a specific offering. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of a Company Registration Rights Indemnitee and shall survive the Transfer of such Stockholder has furnished securities by the Shareholder. Such indemnity and reimbursement of expenses shall remain in writing to full force and effect regardless of any investigation made by or on behalf of a Company Registration Rights Indemnitee and shall survive the Company information expressly for use in Transfer of such Registration Statement or Prospectus or any amendment thereof or supplement thereto or Free Writing Prospectus which corrected or made not misleading information previously furnished to securities by the CompanyShareholder.
(iii) Indemnification similar If the indemnification provided for in Section 2.8(a)(i) or Section 2.8(a)(ii) is unavailable to that specified in Sections 3.9(a)(i) and 3.9(a)(ii) (with appropriate modifications) shall be given by the a Shareholder Registration Rights Indemnitee or a Company and the Stockholder Registration Rights Indemnitee, as applicable, with respect to any required registration Damages referred to therein or other qualification of securities under any applicable securities and state “blue sky” laws.
(iv) If for any reason the foregoing indemnity is unavailable, unenforceable or is insufficient to hold a Shareholder Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, harmless an indemnified party under Sections 3.9(a)(i), 3.9(a)(ii) or 3.9(a)(iii)as contemplated therein, then each applicable the Company or the Shareholder, as applicable, in lieu of indemnifying party such Shareholder Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, shall contribute to the amount paid or payable to by such indemnified party Shareholder Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, as a result of any Claim such Damages in such proportion as is appropriate to reflect the relative fault of the indemnifying partysuch Shareholder Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, on the one hand, and the indemnified partyCompany or the Shareholder, as applicable, on the other hand, in connection with respect to the statements or omissions which resulted in such ClaimDamages as well as any other relevant equitable considerations. The relative fault of the Company or the Shareholder, as applicable, on the one hand, and of a Shareholder Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, on the other hand, shall be determined by reference to, among other thingsfactors, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by or on behalf of the indemnifying party Company or the indemnified party Shareholder, as applicable, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. If, however, ; the allocation provided in the second preceding sentence is not permitted by applicable Law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults but also the relative benefits of the indemnifying party Company and the indemnified party as well as any other relevant equitable considerations. The parties hereto Shareholder agree that it would not be just and equitable if any contribution pursuant to this Section 3.9(a)(iv2.8(a)(iii) were to be determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to in the preceding sentences of this Section 3.9(a)(iv2.8(a)(iii). The amount paid No Shareholder Registration Rights Indemnitee or payable in respect of any Claim shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim. No Person Company Registration Rights Indemnitee guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who the Company or the Shareholder, as applicable, if the Company or the Shareholder, as applicable, was not guilty of such fraudulent misrepresentation. Notwithstanding anything in this Section 3.9(a)(iv) herein to the contrary, in no indemnifying party (other than event shall the Company) shall be required liability of the Shareholder pursuant to this Section 3.9(a)(iv2.8(a)(iii) to contribute any be greater in amount greater than the amount of the net proceeds received by such indemnifying party it from the sale of such Registrable Securities pursuant related to the Registration Statement giving rise to such Claim, less the amount of any indemnification payment made by such indemnifying party pursuant to Sections 3.9(a)(ii) and 3.9(a)(iii). In addition, neither the Stockholder nor any Affiliate thereof shall be required to pay any amount under this Section 3.9(a)(iv) unless such Person or entity would have been required to pay an amount pursuant to Section 3.9(a)(ii) if it had been applicable matter in accordance with its terms.
(v) The indemnity and contribution agreements contained herein shall be in addition to any other rights to which indemnification or contribution which any indemnified party may have pursuant to law or contract and shall remain operative and in full force and effect regardless of any investigation made or omitted by or on behalf of any indemnified party and shall survive the transfer of the Registrable Securities by any such partyfor Damages are sought.
(vi) The indemnification and contribution required by this Section 3.9 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 expense, loss, damage or liability is incurred; provided, that the recipient thereof hereby undertakes to repay such payments if and to the extent it shall be determined by a court of competent jurisdiction that such recipient is not entitled to such payment hereunder.
Appears in 1 contract
Indemnification Rights. (i) In the event of any registration or other offer and sale of any securities of the Company under the Securities Act pursuant to this Article IIIII, the Company will, and hereby agrees to, and hereby does, shall indemnify and hold harmlessharmless each Shareholder and each Person, if any, that controls such Shareholder within the meaning of Section 15 of the Securities Act (each a “controlling person”) and the respective officers, directors, employees, stockholders, general and limited partners, members, Representatives and Affiliates of the applicable Shareholder and each controlling person and of each Affiliate of any of the foregoing (each, a “Registration Rights Indemnitee”), to the fullest extent permitted by law, the Stockholder, its directors, officers, employees, stockholders, members or general and limited partners, the Third Party Stockholder, in the offering or sale of such securities (and its directors, officers, employees, stockholders, members or general and limited partners), underwriter or Qualified Independent Underwriter, if any, in the offering or sale of such securities, each officer, director, employee, stockholder, managing director, affiliate, representative, successor, assign or partner of such underwriter or Qualified Independent Underwriter, and each other Person, if any, who controls such Third Party Stockholder or any such underwriter or Qualified Independent Underwriter within the meaning of the Securities Actlawful, from and against any and all lossesDamages, claimsdirectly or indirectly caused by, damages or liabilitiesrelating to, joint or severalarising out of, actions or proceedings (whether commenced or threatened) and expenses (including reasonable fees of counsel and any amounts paid in any settlement effected with the Company’s consent, which consent shall not be unreasonably withheld or delayed) to which each such indemnified party may become subject under the Securities Act or otherwise in respect thereof (collectively, “Claims”), insofar as such Claims arise out of or are based upon or in connection with (iA) any untrue statement of material fact (or alleged untrue statement of a material fact fact) contained in any Disclosure Package, the Transaction Shelf Registration Statement Statement, any Prospectus (including any preliminary Prospectus), any Free Writing Prospectus, or in any amendment or supplement thereto, or (B) any omission or alleged omission to state in any Disclosure Package, the Transaction Shelf Registration Statement, any Prospectus (including any preliminary Prospectus), any Free Writing Prospectus, or in any amendment or supplement thereto, any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, that the Company shall not be liable to such securities were registered under Registration Rights Indemnitee to the Securities extent that any such Damages are directly caused by an untrue statement or omission made in such Disclosure Package, Transaction Shelf Registration Statement, Prospectus (including any preliminary Prospectus), Free Writing Prospectus, or any amendment or supplement thereto, in reliance upon and in conformity with written information about such Shareholder furnished to the Company by or on behalf of such Shareholder and approved expressly for use therein. This indemnity agreement shall be in addition to any liability which the Company may otherwise have.
(ii) Each Shareholder agrees, severally and not jointly, to indemnify the Company and each of its officers who execute any of the Company’s filings with the SEC pursuant to the Exchange Act or the Securities Act, its directors and each Person, if any, that controls the Company and each Affiliate of any of the foregoing (each, a “Company Registration Rights Indemnitee”), against any and all Damages directly caused by any untrue statement of material fact (or alleged untrue statement of a material fact) contained in any Disclosure Package, the Transaction Shelf Registration Statement, any Prospectus (including any preliminary Prospectus), any Free Writing Prospectus or any amendments or supplements thereto or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary, final or summary Prospectus or any amendment or supplement thereto, together with the documents incorporated by reference therein, or any Free Writing Prospectus utilized in connection therewith, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were mademade not misleading, not misleading or (iii) any violation by the Company of any federalin each case, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration, and the Company will reimburse any such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurred; provided, that the Company shall not be liable to any such indemnified party in any such case to the extent that such Claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact or omission or alleged omission of a material fact was made in such Registration Statement or amendment thereof or supplement thereto or in any such Prospectus or any preliminary, final or summary Prospectus or Free Writing Prospectus in reliance upon and in strict conformity with written information furnished to the Company by or on behalf of such indemnified party specifically Shareholder expressly for use therein; provided, however, that in no event shall the obligations of any Shareholder hereunder exceed the net proceeds received by such Shareholder from the sale of such Shareholder’s Registrable Securities related to the matter in which Damages are sought. The Company and each Shareholder hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Shareholder to the contrary, for all purposes of this Agreement, the only information furnished or to be furnished to the Company for use in any registration statement, preliminary, final or summary prospectus or amendment or supplement thereto, or any free writing prospectus, are statements specifically relating to (A) the beneficial ownership of LMG Series C Stock by such Shareholder and its Affiliates as disclosed in the section of such document entitled “Selling Shareholders” or “Principal and Selling Shareholders” or other variations thereof, (B) the name and address of such Shareholder, (C) any information provided by or on behalf of such Shareholder for any plan of distribution prepared in accordance with Item 508 of Regulation S-K and (D) any free writing prospectus prepared by such Shareholder for purposes of a specific offering. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party and shall survive the transfer of such securities by the Stockholder or the Third Party Stockholder.
(ii) The Stockholder shall indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 3.9(a)(i)) to the extent permitted by law, the Company, its officers and directors, each Person controlling the Company within the meaning of the Securities Act and the Third Party Stockholder, if applicable, and its directors, officers, stockholders, managing directors, agents, affiliates, consultants, representatives, successors, assigns or general and limited partners and respective controlling Persons with respect to any untrue statement or alleged untrue statement of any material fact in, or omission or alleged omission of any material fact from, such Registration Statement, any preliminary, final or summary Prospectus contained therein, or any amendment or supplement thereto, or any Free Writing Prospectus utilized in connection therewith, if such statement or alleged statement or omission or alleged omission was made in reliance upon and in strict conformity with written information furnished to the Company or its representatives by or on behalf of the Stockholder or underwriter or Qualified Independent Underwriter, if any, specifically for use therein, and the Stockholder shall reimburse such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurred; provided, that the aggregate amount which the Stockholder shall be required to pay pursuant to this Section 3.9 (including pursuant to indemnity, contribution or otherwise) shall in no case be greater than the amount of the net proceeds received by the Stockholder upon the sale of the Registrable Securities pursuant to the Registration Statement giving rise to such Claim; provided, further, that such Stockholder shall not be liable in any such case to the extent that prior to the filing of any such Registration Statement or Prospectus or amendment thereof or supplement thereto, or any Free Writing Prospectus utilized in connection therewith, such Stockholder has furnished in writing to the Company information expressly for use in such Registration Statement or Prospectus or any amendment thereof or supplement thereto or Free Writing Prospectus which corrected or made not misleading information previously furnished to the CompanyShareholder.
(iii) Indemnification similar If the indemnification provided for in Section 2.6(a)(i) or Section 2.6(a)(ii) is unavailable to that specified in Sections 3.9(a)(i) and 3.9(a)(ii) (with appropriate modifications) shall be given by the a Registration Rights Indemnitee or a Company and the Stockholder Registration Rights Indemnitee, as applicable, with respect to any required registration Damages referred to therein or other qualification of securities under any applicable securities and state “blue sky” laws.
(iv) If for any reason the foregoing indemnity is unavailable, unenforceable or is insufficient to hold the Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, harmless an indemnified party under Sections 3.9(a)(i), 3.9(a)(ii) or 3.9(a)(iii)as contemplated therein, then each applicable the Company or the Shareholder, as applicable, in lieu of indemnifying party such Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, shall contribute to the amount paid or payable to by such indemnified party Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, as a result of any Claim such Damages in such proportion as is appropriate to reflect the relative fault of the indemnifying partyRegistration Rights Indemnitee or the Company Registration Rights Indemnitee, as applicable, on the one hand, and the indemnified partyCompany or the Shareholder, as applicable, on the other hand, in connection with respect to the statements or omissions which resulted in such ClaimDamages as well as any other relevant equitable considerations. The relative fault of the Company or Shareholder, as applicable, on the one hand, and of the Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, on the other hand, shall be determined by reference to, among other thingsfactors, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by or on behalf of the indemnifying party Company or information supplied by or on behalf of the indemnified party Shareholder, as applicable, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. If, however, ; the allocation provided in the second preceding sentence is not permitted by applicable Law, then Company and each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults but also the relative benefits of the indemnifying party and the indemnified party as well as any other relevant equitable considerations. The parties hereto Shareholder agree that it would not be just and equitable if any contribution pursuant to this Section 3.9(a)(iv) 2.6 were to be determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to in the preceding sentences of this Section 3.9(a)(iv). The amount paid or payable in respect of any Claim shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim2.6. No Person Registration Rights Indemnitee or Company Registration Rights Indemnitee guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who the Company or the Shareholder, as applicable, if the Company or the Shareholder, as applicable, was not guilty of such fraudulent misrepresentation. Notwithstanding anything in this Section 3.9(a)(iv) herein to the contrary, in no indemnifying party (other than event shall the Company) shall liability of any Shareholder be required pursuant to this Section 3.9(a)(iv) to contribute any greater in amount greater than the amount of the net proceeds received by such indemnifying party Shareholder from the sale of such Registrable Securities pursuant related to the Registration Statement giving rise to such Claim, less matter in which Damages are sought or the amount of any indemnification payment made by for which such indemnifying party pursuant to Sections 3.9(a)(ii) and 3.9(a)(iii). In addition, neither the Stockholder nor any Affiliate thereof shall be required to pay any amount under this Section 3.9(a)(iv) unless such Person or entity would have been required obligated to pay an amount pursuant to by way of indemnification if the indemnification provided for under Section 3.9(a)(ii2.6(a)(i) if it or Section 2.6(a)(ii) hereof had been applicable in accordance with its termsavailable or sufficient under the circumstances.
(v) The indemnity and contribution agreements contained herein shall be in addition to any other rights to indemnification or contribution which any indemnified party may have pursuant to law or contract and shall remain operative and in full force and effect regardless of any investigation made or omitted by or on behalf of any indemnified party and shall survive the transfer of the Registrable Securities by any such party.
(vi) The indemnification and contribution required by this Section 3.9 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 expense, loss, damage or liability is incurred; provided, that the recipient thereof hereby undertakes to repay such payments if and to the extent it shall be determined by a court of competent jurisdiction that such recipient is not entitled to such payment hereunder.
Appears in 1 contract
Indemnification Rights. (i) In the event of any a registration or offer and sale of any securities of the Company Registrable Securities under the Securities Act pursuant to this Article IIIAgreement, the Company will, and hereby agrees to, and hereby does, shall indemnify and hold harmlessharmless each of the Selling Searchlight Parties thereunder and each Person, if any, that controls each of the Selling Searchlight Parties within the meaning of Section 15 of the Securities Act (each a “controlling person”) and the respective officers, directors, managers, employees, agents, stockholders, partners, members and Affiliates of each of the Selling Searchlight Parties and each controlling person (each, a “Registration Rights Indemnitee”), to the fullest extent permitted by law, the Stockholder, its directors, officers, employees, stockholders, members or general and limited partners, the Third Party Stockholder, in the offering or sale of such securities (and its directors, officers, employees, stockholders, members or general and limited partners), underwriter or Qualified Independent Underwriter, if any, in the offering or sale of such securities, each officer, director, employee, stockholder, managing director, affiliate, representative, successor, assign or partner of such underwriter or Qualified Independent Underwriter, and each other Person, if any, who controls such Third Party Stockholder or any such underwriter or Qualified Independent Underwriter within the meaning of the Securities Actlawful, from and against any and all losses, claims, damages or liabilitiesDamages, joint or several, actions directly or proceedings (whether commenced or threatened) and expenses (including reasonable fees of counsel and any amounts paid in any settlement effected with the Company’s consentindirectly caused by, which consent shall not be unreasonably withheld or delayed) to which each such indemnified party may become subject under the Securities Act or otherwise in respect thereof (collectivelyrelating to, “Claims”)arising out of, insofar as such Claims arise out of or are based upon or in connection with (iA) any untrue statement or alleged untrue statement of a material fact contained in any Disclosure Package, any Registration Statement Statement, any Prospectus (including any preliminary Prospectus), any Free Writing Prospectus, or in any amendment or supplement thereto or document incorporated by reference therein, in each case, related to the registration of such Registrable Securities or (B) any omission to state in any Disclosure Package, any Registration Statement, any Prospectus (including any preliminary Prospectus), any Free Writing Prospectus, or in any amendment or supplement thereto, in each case, related to the registration of such Registrable Securities, any material fact required to be stated therein or necessary to make the statements therein not misleading (and, in the case of any Prospectus, in the light of the circumstances under which a statement is made); provided, that the Company shall not be liable to such securities were registered under Registration Rights Indemnitee to the Securities Act extent that any such Damages are directly caused by an untrue statement or omission made in such Disclosure Package, Registration Statement, Prospectus (including any preliminary Prospectus), Free Writing Prospectus, or any amendment or supplement thereto, in each case, related to the omission registration of such Registrable Securities, in reliance upon and in conformity with written information furnished to the Company by or alleged on behalf of the Selling Searchlight Parties expressly for use therein. This indemnity agreement shall be in addition to any liability which the Company may otherwise have.
(ii) Each Selling Searchlight Party agrees severally and not jointly to indemnify the Company and its officers and directors and each Person, if any, that controls the Company (each, a “Company Registration Rights Indemnitee”), against any and all Damages directly caused by any untrue statement of material fact contained in any Disclosure Package, any Registration Statement, any Prospectus (including any preliminary Prospectus), any Free Writing Prospectus or any amendments or supplements thereto, in each case, related to the registration of such Selling Searchlight Party’s Registrable Securities, or any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading (and, (ii) in the case of any untrue statement or alleged untrue statement of a material fact contained in any preliminary, final or summary Prospectus or any amendment or supplement thereto, together with the documents incorporated by reference therein, or any Free Writing Prospectus utilized in connection therewith, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements thereinProspectus, in the light of the circumstances under which they were a statement is made), not misleading or (iii) any violation by the Company of any federalin each case, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration, and the Company will reimburse any such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurred; provided, that the Company shall not be liable to any such indemnified party in any such case to the extent that such Claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact or omission or alleged omission of a material fact was made in such Registration Statement or amendment thereof or supplement thereto or in any such Prospectus or any preliminary, final or summary Prospectus or Free Writing Prospectus in reliance upon and in strict conformity with written information furnished to the Company by or on behalf of such indemnified party specifically Selling Searchlight Party expressly for use therein. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party and shall survive the transfer of such securities by the Stockholder or the Third Party Stockholder.
(ii) The Stockholder shall indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 3.9(a)(i)) to the extent permitted by law, the Company, its officers and directors, each Person controlling the Company within the meaning of the Securities Act and the Third Party Stockholder, if applicable, and its directors, officers, stockholders, managing directors, agents, affiliates, consultants, representatives, successors, assigns or general and limited partners and respective controlling Persons with respect to any untrue statement or alleged untrue statement of any material fact in, or omission or alleged omission of any material fact from, such Registration Statement, any preliminary, final or summary Prospectus contained therein, or any amendment or supplement thereto, or any Free Writing Prospectus utilized in connection therewith, if such statement or alleged statement or omission or alleged omission was made in reliance upon and in strict conformity with written information furnished to the Company or its representatives by or on behalf of the Stockholder or underwriter or Qualified Independent Underwriter, if any, specifically for use therein, and the Stockholder shall reimburse such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurred; provided, that the aggregate amount which the Stockholder shall be required to pay pursuant to this Section 3.9 (including pursuant to indemnity, contribution or otherwise) shall in no case be greater than the amount of the net proceeds received by the Stockholder upon the sale of the Registrable Securities pursuant to the Registration Statement giving rise to such Claim; provided, further, that such Stockholder shall not be liable in any such case to the extent that prior to the filing of any such Registration Statement or Prospectus or amendment thereof or supplement thereto, or any Free Writing Prospectus utilized in connection therewith, such Stockholder has furnished in writing to the Company information expressly for use in such Registration Statement or Prospectus or any amendment thereof or supplement thereto or Free Writing Prospectus which corrected or made not misleading information previously furnished to the Company.
(iii) Indemnification similar If the indemnification provided for in Section 9(a)(i) or (ii) is unavailable to that specified in Sections 3.9(a)(i) and 3.9(a)(ii) (with appropriate modifications) shall be given by the a Registration Rights Indemnitee or a Company and the Stockholder Registration Rights Indemnitee, as applicable, with respect to any required registration Damages referred to therein or other qualification of securities under any applicable securities and state “blue sky” laws.
(iv) If for any reason the foregoing indemnity is unavailable, unenforceable or is insufficient to hold the Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, harmless an indemnified party under Sections 3.9(a)(i), 3.9(a)(ii) or 3.9(a)(iii)as contemplated therein, then the Company or each applicable Selling Searchlight Party, as applicable, in lieu of indemnifying party such Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, shall contribute to the amount paid or payable to by such indemnified party Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, as a result of any Claim such Damages in such proportion as is appropriate to reflect the relative fault of the indemnifying partyRegistration Rights Indemnitee or the Company Registration Rights Indemnitee, as applicable, on the one hand, and the indemnified partyCompany or such Selling Searchlight Party, as applicable, on the other hand, in connection with respect to the statements or omissions which resulted in such ClaimDamages as well as any other relevant equitable considerations. The relative fault of the Company or such Selling Searchlight Party, as applicable, on the one hand, and of the Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, on the other hand, shall be determined by reference to, among other thingsfactors, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by or on behalf of the indemnifying party Company or by or on behalf of the indemnified party Searchlight Parties, as applicable, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. If, however, ; the allocation provided in the second preceding sentence is not permitted by applicable Law, then Company and each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults but also the relative benefits of the indemnifying party and the indemnified party as well as any other relevant equitable considerations. The parties hereto Selling Searchlight Party agree that it would not be just and equitable if any contribution pursuant to this Section 3.9(a)(iv9(a)(iii) were to be determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to in the preceding sentences of this Section 3.9(a)(iv9(a)(iii). The In no event shall the amount paid or payable which a Searchlight Party may be obligated to contribute pursuant to this Section 9(a)(iii) exceed an amount by which the net proceeds (after deducting its portion of Selling Expenses) actually received by any Searchlight Party in respect the sale of Registrable Securities that gives rise to such obligation to contribute exceed the amount of any Claim shall be deemed Damages which such Searchlight Party has otherwise been required to include any legal pay by reason of such untrue statement or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claimomission. No Person Registration Rights Indemnitee or Company Registration Rights Indemnitee guilty of fraudulent misrepresentation (within the meaning of Section 11(f10(f) of the Securities Act) shall be entitled to contribution from any Person who was the Company or such Selling Searchlight Party, as applicable, if the Company or such Selling Searchlight Party, as applicable, were not guilty of such fraudulent misrepresentation. Notwithstanding anything in this Section 3.9(a)(iv) to the contrary, no indemnifying party (other than the Company) shall be required pursuant to this Section 3.9(a)(iv) to contribute any amount greater than the amount of the net proceeds received by such indemnifying party from the sale of Registrable Securities pursuant to the Registration Statement giving rise to such Claim, less the amount of any indemnification payment made by such indemnifying party pursuant to Sections 3.9(a)(ii) and 3.9(a)(iii). In addition, neither the Stockholder nor any Affiliate thereof shall be required to pay any amount under this Section 3.9(a)(iv) unless such Person or entity would have been required to pay an amount pursuant to Section 3.9(a)(ii) if it had been applicable in accordance with its terms.
(v) The indemnity and contribution agreements contained herein shall be in addition to any other rights to indemnification or contribution which any indemnified party may have pursuant to law or contract and shall remain operative and in full force and effect regardless of any investigation made or omitted by or on behalf of any indemnified party and shall survive the transfer of the Registrable Securities by any such party.
(vi) The indemnification and contribution required by this Section 3.9 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 expense, loss, damage or liability is incurred; provided, that the recipient thereof hereby undertakes to repay such payments if and to the extent it shall be determined by a court of competent jurisdiction that such recipient is not entitled to such payment hereunder.
Appears in 1 contract
Samples: Registration Rights Agreement (Liberty Latin America Ltd.)
Indemnification Rights. (ia) In From and after the event of any registration or offer Effective Time, each Indemnitee shall be held harmless and sale of any securities of the Company under the Securities Act pursuant to this Article III, the Company willindemnified from and against, and hereby agrees toshall be compensated, reimbursed and hereby doeshave paid, indemnify and hold harmless, any Damages which are directly suffered or incurred by such Indemnitee (regardless of whether or not such Damages relate to the fullest extent permitted by law, the Stockholder, its directors, officers, employees, stockholders, members or general and limited partners, the Third Party Stockholder, in the offering or sale of such securities (and its directors, officers, employees, stockholders, members or general and limited partners), underwriter or Qualified Independent Underwriter, if any, in the offering or sale of such securities, each officer, director, employee, stockholder, managing director, affiliate, representative, successor, assign or partner of such underwriter or Qualified Independent Underwriter, and each other Person, if any, who controls such Third Party Stockholder or any such underwriter or Qualified Independent Underwriter within the meaning of the Securities Act, from and against any and all losses, claims, damages or liabilities, joint or several, actions or proceedings (whether commenced or threatenedthird party claim) and expenses (including reasonable fees of counsel and any amounts paid in any settlement effected with the Company’s consent, which consent shall not be unreasonably withheld arise from or delayed) to which each such indemnified party may become subject under the Securities Act or otherwise in respect thereof (collectively, “Claims”), insofar as such Claims arise out of or are based upon a result of:
(i) any untrue statement inaccuracy in or alleged untrue statement breach of a material fact contained any representation or warranty of the Company to Parent or Merger Sub set forth in this Agreement, the Company Disclosure Schedule and any Registration Statement under which such securities were registered under other agreements, documents, certificates, schedules or instruments delivered or executed by the Securities Act Company or any of the Company Subsidiaries, or by any officer of the Company or the omission Company Subsidiaries on behalf of the Company or alleged omission any of the Company Subsidiaries, as of the date hereof and as of the Closing Date as though such representations and warranties were made on and as of the Closing Date in connection with this Agreement and the transactions contemplated hereby, including the Merger (in each case, without giving effect to state therein a material fact required to be stated therein any materiality or necessary to make the statements therein not misleading, similar qualification contained or incorporated directly or indirectly in such representation or warranty);
(ii) any untrue statement breach of any covenant or alleged untrue statement obligation of a material fact contained the Company to Parent or Merger Sub, at or prior to the Effective Time, in any preliminary, final or summary Prospectus this Agreement (including the covenants set forth in Article V) or any amendment other agreement, document, certificate, schedule or supplement thereto, together with instrument delivered or executed in connection herewith by the documents incorporated by reference thereinCompany or any of the Company Subsidiaries, or any Free Writing Prospectus utilized officer of the Company or any of the Company Subsidiaries on behalf of the Company or any of the Company Subsidiaries, at or prior to the Closing in connection therewithwith this Agreement and the transactions contemplated hereby, or including the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or Merger; or
(iii) any violation demands by holders of Company Capital Stock under Section 262 of the DGCL and any successor provision thereto (which shall include amounts paid to such holders with respect to such demands in excess of such holders’ portion of the Merger Consideration payable to holders of the same class or series of Company Capital Stock pursuant to Article II, as well as reasonable attorneys’ fees and reasonable expenses incurred in connection with such demands);
(iv) any error or inaccuracy in the Final Merger Consideration Schedule as of the Closing Date, to the extent such error or inaccuracy would result, upon correction, in Parent’s paying aggregate Net Merger Consideration in excess of the aggregate Net Merger Consideration that would have otherwise been payable;
(v) (A) Taxes of the Company or any of the Company Subsidiaries or the nonpayment thereof for any taxable years or periods ending on or before the Closing Date and the portion through the Closing Date for any taxable period that includes, but does not end on, the Closing Date; (B) Taxes of any member of an affiliated, consolidated, combined or unitary group of which the Company (or any predecessor or Subsidiary) is or was a member prior to the Effective Time, including pursuant to Treasury Regulation 1.1502-6 or any analogous or similar state, local or foreign law, rule or regulation; and (C) Taxes of any Person other than the Company or any of the Company Subsidiaries as a transferee or successor, by contract or pursuant to any law, rule or regulation, which Taxes relate to a transaction or event occurring on or before the Effective Time;
(vi) any indemnification obligations owing by the Company to any past or present officers, directors or employees of any federal, state or common law rule or regulation applicable to the Company and (whether under the DGCL, the Company Constituent Documents, any current indemnification agreement, this Agreement or otherwise) with respect to claims made against such past or present officers, directors or employees;
(vii) any Action relating to action required any matter referred to in clauses “(i)” through “(vii)” above (including any Action commenced by any Indemnitee for the purpose of enforcing any of its rights under this Article VIII).
(b) From and after the Effective Time, in the event the Surviving Corporation suffers, incurs or otherwise becomes subject to any Damages as a result of or inaction by the Company in connection with any such registration, and the Company will reimburse any such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurred; provided, that the Company shall not be liable to any such indemnified party in any such case to the extent such Claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact or omission or alleged omission of a material fact made in such Registration Statement or amendment thereof or supplement thereto or in any such Prospectus or any preliminary, final or summary Prospectus or Free Writing Prospectus in reliance upon and in strict conformity with written information furnished to the Company by or on behalf of such indemnified party specifically for use therein. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party and shall survive the transfer of such securities by the Stockholder or the Third Party Stockholder.
(ii) The Stockholder shall indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 3.9(a)(i)) to the extent permitted by law, the Company, its officers and directors, each Person controlling the Company within the meaning of the Securities Act and the Third Party Stockholder, if applicable, and its directors, officers, stockholders, managing directors, agents, affiliates, consultants, representatives, successors, assigns or general and limited partners and respective controlling Persons with respect to any untrue statement or alleged untrue statement of any material fact in, or omission or alleged omission of any material fact from, such Registration Statement, any preliminary, final or summary Prospectus contained therein, or any amendment or supplement thereto, or any Free Writing Prospectus utilized in connection therewith, if such statement or alleged statement or omission or alleged omission was made in reliance upon and in strict conformity with written information furnished to the Company or its representatives by or on behalf of the Stockholder or underwriter or Qualified Independent Underwriter, if any, specifically matters for use therein, and the Stockholder shall reimburse such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurred; provided, that the aggregate amount which the Stockholder shall be required to pay indemnification is available pursuant to this Section 3.9 (including pursuant to indemnity, contribution or otherwise) shall in no case be greater than the amount of the net proceeds received by the Stockholder upon the sale of the Registrable Securities pursuant to the Registration Statement giving rise to such Claim; provided, further, that such Stockholder shall not be liable in any such case to the extent that prior to the filing of any such Registration Statement or Prospectus or amendment thereof or supplement thereto, or any Free Writing Prospectus utilized in connection therewith, such Stockholder has furnished in writing to the Company information expressly for use in such Registration Statement or Prospectus or any amendment thereof or supplement thereto or Free Writing Prospectus which corrected or made not misleading information previously furnished to the Company.
(iii) Indemnification similar to that specified in Sections 3.9(a)(i) and 3.9(a)(ii) (with appropriate modifications) shall be given by the Company and the Stockholder with respect to any required registration or other qualification of securities under any applicable securities and state “blue sky” laws.
(iv) If for any reason the foregoing indemnity is unavailable, unenforceable or is insufficient to hold harmless an indemnified party under Sections 3.9(a)(i), 3.9(a)(ii) or 3.9(a)(iii8.2(a), then each applicable indemnifying party (without limiting any of the rights of the Surviving Corporation as an Indemnitee) Parent shall contribute also be deemed, by virtue of its ownership of the stock of the Surviving Corporation, to the amount paid or payable to such indemnified party have incurred Damages as a result of any Claim in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and the indemnified party, on the other hand, with respect to such Claim. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. If, however, the allocation provided in the second preceding sentence is not permitted by applicable Law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults but also the relative benefits of the indemnifying party and the indemnified party as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if any contribution pursuant to this Section 3.9(a)(iv) were to be determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the preceding sentences of this Section 3.9(a)(iv). The amount paid or payable in respect of any Claim shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim. No Person guilty of fraudulent misrepresentation (within matter but in either case the meaning of Section 11(f) of total amount both Parent and the Securities Act) Surviving Corporation may recover shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. Notwithstanding anything in this Section 3.9(a)(iv) to the contrary, no indemnifying party (other than the Company) shall be required pursuant to this Section 3.9(a)(iv) to contribute any amount greater than exceed the amount of the net proceeds received by such indemnifying party from the sale of Registrable Securities pursuant to the Registration Statement giving rise to such Claim, less the amount of any indemnification payment made by such indemnifying party pursuant to Sections 3.9(a)(ii) and 3.9(a)(iii). In addition, neither the Stockholder nor any Affiliate thereof shall be required to pay any amount under this Section 3.9(a)(iv) unless such Person or entity would have been required to pay an amount pursuant to Section 3.9(a)(ii) if it had been applicable in accordance with its termsDamages.
(v) The indemnity and contribution agreements contained herein shall be in addition to any other rights to indemnification or contribution which any indemnified party may have pursuant to law or contract and shall remain operative and in full force and effect regardless of any investigation made or omitted by or on behalf of any indemnified party and shall survive the transfer of the Registrable Securities by any such party.
(vi) The indemnification and contribution required by this Section 3.9 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 expense, loss, damage or liability is incurred; provided, that the recipient thereof hereby undertakes to repay such payments if and to the extent it shall be determined by a court of competent jurisdiction that such recipient is not entitled to such payment hereunder.
Appears in 1 contract
Samples: Merger Agreement (Accelrys, Inc.)
Indemnification Rights. (i) In the event of any registration or other offer and sale of any securities of the Company under the Securities Act pursuant to this Article IIIII, the Company will, and hereby agrees to, and hereby does, shall indemnify and hold harmlessharmless the Shareholder and each Person, if any, that controls the Shareholder within the meaning of Section 15 of the Securities Act (each a “controlling person”), their respective officers, directors, employees, stockholders, general and limited partners, members, Representatives and Affiliates, and each controlling person of each Affiliate of any of the foregoing Persons (each, a “Shareholder Registration Rights Indemnitee”), to the fullest extent permitted by law, the Stockholder, its directors, officers, employees, stockholders, members or general and limited partners, the Third Party Stockholder, in the offering or sale of such securities (and its directors, officers, employees, stockholders, members or general and limited partners), underwriter or Qualified Independent Underwriter, if any, in the offering or sale of such securities, each officer, director, employee, stockholder, managing director, affiliate, representative, successor, assign or partner of such underwriter or Qualified Independent Underwriter, and each other Person, if any, who controls such Third Party Stockholder or any such underwriter or Qualified Independent Underwriter within the meaning of the Securities Actlawful, from and against any and all lossesDamages caused by, claimsrelating to, damages arising out of, or liabilities, joint or several, actions or proceedings in connection with (whether commenced or threatened) and expenses (including reasonable fees of counsel and any amounts paid in any settlement effected with the Company’s consent, which consent shall not be unreasonably withheld or delayed) to which each such indemnified party may become subject under the Securities Act or otherwise in respect thereof (collectively, “Claims”), insofar as such Claims arise out of or are based upon (iA) any untrue statement of material fact (or alleged untrue statement of a material fact fact) contained in any Disclosure Package, any Registration Statement under which such securities were registered under the Securities Act Statement, any Prospectus (including any preliminary Prospectus), any Free Writing Prospectus, or the in any amendment or supplement thereto, or (B) any omission or alleged omission to state therein a any material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary, final or summary Prospectus or any amendment or supplement thereto, together with the documents incorporated by reference therein, or any Free Writing Prospectus utilized in connection therewith, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration, and the Company will reimburse any such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurredmisleading; provided, provided that the Company shall not be liable to any such indemnified party in any such case a Shareholder Registration Rights Indemnitee to the extent that any such Claim arises out of or is based upon Damages are directly caused by any untrue statement or omission (or alleged untrue statement of a material fact or omission or alleged omission of a material fact omission) made in such Disclosure Package, Registration Statement Statement, Prospectus (including any preliminary Prospectus), Free Writing Prospectus, or any amendment thereof or supplement thereto or in any such Prospectus or any preliminarythereto, final or summary Prospectus or Free Writing Prospectus in reliance upon and in strict conformity with written information about the Shareholder furnished to the Company by or on behalf of such indemnified party specifically the Shareholder expressly for use therein. This indemnity agreement shall be in addition to any liability which the Company may otherwise have. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party any Shareholder Registration Rights Indemnitee and shall survive the transfer of such securities by the Stockholder or the Third Party StockholderShareholder.
(ii) The Stockholder Shareholder shall indemnify and hold harmless (in the same manner Company and each of its officers who execute any of the Company’s filings with the SEC pursuant to the same extent as set forth in Section 3.9(a)(i)) to the extent permitted by law, the Company, its officers and directors, each Person controlling the Company within the meaning of Exchange Act or the Securities Act and the Third Party StockholderAct, if applicable, and its directors, officersofficers and employees (each, stockholdersa “Company Registration Rights Indemnitee”), managing directorsto the fullest extent lawful, agentsfrom and against any and all Damages directly caused by, affiliatesrelating to, consultantsarising out of, representatives, successors, assigns or general and limited partners and respective controlling Persons in connection with respect to (A) any untrue statement of material fact (or alleged untrue statement of a material fact) contained in any material fact inDisclosure Package, or omission or alleged omission of any material fact from, such Registration Statement, any preliminaryProspectus (including any preliminary Prospectus), final any Free Writing Prospectus or summary Prospectus contained therein, or in any amendment or supplement theretothereto or (B) any omission (or alleged omission) to state therein any material fact required to be stated therein or necessary to make the statements therein, or any Free Writing Prospectus utilized in connection therewithlight of the circumstances under which they were made, if not misleading, in each case, to the extent that such untrue statement or alleged statement or omission or alleged omission was made in reliance upon and in strict conformity with written information furnished to the Company or its representatives by or on behalf of the Stockholder or underwriter or Qualified Independent Underwriter, if any, specifically Shareholder expressly for use therein, and the Stockholder shall reimburse such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurred; provided, however, that the aggregate amount which the Stockholder shall be required to pay pursuant to this Section 3.9 (including pursuant to indemnity, contribution or otherwise) shall in no case be greater than event shall the amount obligations of the Shareholder hereunder exceed the net proceeds received by the Stockholder upon it from the sale of the its Registrable Securities pursuant related to the Registration Statement giving rise matter in which Damages are sought. The Company and the Shareholder hereby acknowledge and agree that, unless otherwise expressly agreed to such Claim; providedin writing by the Shareholder to the contrary, furtherfor all purposes of this Agreement, that such Stockholder shall not the only information furnished or to be liable furnished to the Company for use in any such case to the extent that prior to the filing of any such Registration Statement registration statement, preliminary, final or Prospectus summary prospectus or amendment thereof or supplement thereto, or any Free Writing Prospectus utilized free writing prospectus, are statements specifically relating to (w) the beneficial ownership of the Capital Stock by the Shareholder and its Affiliates as disclosed in connection therewiththe section of such document entitled “Selling Shareholders” or “Principal and Selling Shareholders” or other variations thereof, (x) the name and address of the Shareholder, (y) any information provided by or on behalf of the Shareholder for any plan of distribution prepared in accordance with Item 508 of Regulation S-K and (z) any free writing prospectus prepared by the Shareholder for purposes of a specific offering. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of a Company Registration Rights Indemnitee and shall survive the Transfer of such Stockholder has furnished securities by the Shareholder. Such indemnity and reimbursement of expenses shall remain in writing to full force and effect regardless of any investigation made by or on behalf of a Company Registration Rights Indemnitee and shall survive the Company information expressly for use in Transfer of such Registration Statement or Prospectus or any amendment thereof or supplement thereto or Free Writing Prospectus which corrected or made not misleading information previously furnished to securities by the CompanyShareholder.
(iii) Indemnification similar If the indemnification provided for in Section 2.8(a)(i) or Section 2.8(a)(ii) is unavailable to that specified in Sections 3.9(a)(i) and 3.9(a)(ii) (with appropriate modifications) shall be given by the a Shareholder Registration Rights Indemnitee or a Company and the Stockholder Registration Rights Indemnitee, as applicable, with respect to any required registration Damages referred to therein or other qualification of securities under any applicable securities and state “blue sky” laws.
(iv) If for any reason the foregoing indemnity is unavailable, unenforceable or is insufficient to hold a Shareholder Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, harmless an indemnified party under Sections 3.9(a)(i), 3.9(a)(ii) or 3.9(a)(iii)as contemplated therein, then each applicable the Company or the Shareholder, as applicable, in lieu of indemnifying party such Shareholder Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, shall contribute to the amount paid or payable to by such indemnified party Shareholder Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, as a result of any Claim such Damages in such proportion as is appropriate to reflect the relative fault of the indemnifying partysuch Shareholder Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, on the one hand, and the indemnified partyCompany or the Shareholder, as applicable, on the other hand, in connection with respect to the statements or omissions which resulted in such ClaimDamages as well as any other relevant equitable considerations. The relative fault of the Company or the Shareholder, as applicable, on the one hand, and of a Shareholder Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, on the other hand, shall be determined by reference to, among other thingsfactors, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by or on behalf of the indemnifying party Company or the indemnified party Shareholder, as applicable, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. If, however, ; the allocation provided in the second preceding sentence is not permitted by applicable Law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults but also the relative benefits of the indemnifying party Company and the indemnified party as well as any other relevant equitable considerations. The parties hereto Shareholder agree that it would not be just and equitable if any contribution pursuant to this Section 3.9(a)(iv2.8(a)(iii) were to be determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to in the preceding sentences of this Section 3.9(a)(iv2.8(a)(iii). The amount paid No Shareholder Registration Rights Indemnitee or payable in respect of any Claim shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim. No Person Company Registration Rights Indemnitee guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who the Company or the Shareholder, as applicable, if the Company or the Shareholder, as applicable, was not guilty of such fraudulent misrepresentation. Notwithstanding anything in this Section 3.9(a)(iv) herein to the contrary, in no indemnifying party (other than event shall the Company) shall be required liability of the Shareholder pursuant to this Section 3.9(a)(iv2.8(a)(iii) to contribute any be greater in amount greater than the amount of the net proceeds received by such indemnifying party it from the sale of such Registrable Securities pursuant related to the Registration Statement giving rise to such Claim, less the amount of any indemnification payment made by such indemnifying party pursuant to Sections 3.9(a)(ii) and 3.9(a)(iii). In addition, neither the Stockholder nor any Affiliate thereof shall be required to pay any amount under this Section 3.9(a)(iv) unless such Person or entity would have been required to pay an amount pursuant to Section 3.9(a)(ii) if it had been applicable matter in accordance with its terms.
(v) The indemnity and contribution agreements contained herein shall be in addition to any other rights to which indemnification or contribution which any indemnified party may have pursuant to law or contract and shall remain operative and in full force and effect regardless of any investigation made or omitted by or on behalf of any indemnified party and shall survive the transfer of the Registrable Securities by any such partyfor Damages are sought.
(vi) The indemnification and contribution required by this Section 3.9 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 expense, loss, damage or liability is incurred; provided, that the recipient thereof hereby undertakes to repay such payments if and to the extent it shall be determined by a court of competent jurisdiction that such recipient is not entitled to such payment hereunder.
Appears in 1 contract
Samples: Investor Rights Agreement (Outlook Therapeutics, Inc.)
Indemnification Rights. (i) In the event of any registration or other offer and sale of any securities of the Company under the Securities Act pursuant to this Article IIII, the Company will, and hereby agrees to, and hereby does, shall indemnify and hold harmlessharmless the Investors and each Person, if any, that controls the Investors within the meaning of Section 15 of the Securities Act (each a “controlling person”), their respective officers, directors, employees, stockholders, members, Representatives and Affiliates, and each controlling person of each Affiliate of any of the foregoing Persons (each, a “Investor Registration Rights Indemnitee”), to the fullest extent permitted by law, the Stockholder, its directors, officers, employees, stockholders, members or general and limited partners, the Third Party Stockholder, in the offering or sale of such securities (and its directors, officers, employees, stockholders, members or general and limited partners), underwriter or Qualified Independent Underwriter, if any, in the offering or sale of such securities, each officer, director, employee, stockholder, managing director, affiliate, representative, successor, assign or partner of such underwriter or Qualified Independent Underwriter, and each other Person, if any, who controls such Third Party Stockholder or any such underwriter or Qualified Independent Underwriter within the meaning of the Securities Actlawful, from and against any and all losses, claims, damages or liabilities, joint or several, actions or proceedings Damages caused by (whether commenced or threatened) and expenses (including reasonable fees of counsel and any amounts paid in any settlement effected with the Company’s consent, which consent shall not be unreasonably withheld or delayed) to which each such indemnified party may become subject under the Securities Act or otherwise in respect thereof (collectively, “Claims”), insofar as such Claims arise out of or are based upon (iA) any untrue statement of material fact (or alleged untrue statement of a material fact fact) contained in any Disclosure Package, any Registration Statement under which such securities were registered under the Securities Act Statement, any Prospectus (including any preliminary Prospectus), any Free Writing Prospectus, or the in any amendment or supplement thereto, (B) any omission or alleged omission to state therein a any material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary, final or summary Prospectus or any amendment or supplement thereto, together with the documents incorporated by reference therein, or any Free Writing Prospectus utilized in connection therewith, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iiiC) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any federal, foreign or state securities laws or common law any rule or regulation applicable to promulgated under the Company and relating to action required of Securities Act, the Exchange Act or inaction by the Company in connection with any such registration, and the Company will reimburse any such indemnified party for any legal foreign or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurredstate securities laws; provided, provided that the Company shall not be liable to any such indemnified party in any such case an Investor Registration Rights Indemnitee to the extent that any such Claim arises out of or is based upon Damages are directly caused by any untrue statement or omission (or alleged untrue statement of a material fact or omission or alleged omission of a material fact omission) made in such Disclosure Package, Registration Statement Statement, Prospectus (including any preliminary Prospectus), Free Writing Prospectus, or any amendment thereof or supplement thereto or thereto, in any such Prospectus or any preliminary, final or summary Prospectus or Free Writing Prospectus in strict reliance upon and strictly in strict conformity with written information about the Investors furnished to the Company by or on behalf of such indemnified party specifically the Investors expressly for use therein. This indemnity shall be in addition to any liability which the Company may otherwise have. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party any Investor Registration Rights Indemnitee and shall survive the transfer Transfer of such securities by the Stockholder or the Third Party StockholderInvestor.
(ii) The Stockholder Each of the Investors shall indemnify and hold harmless (in the same manner Company and each of its officers who execute any of the Company’s filings with the SEC pursuant to the same extent as set forth in Section 3.9(a)(i)) to the extent permitted by law, the Company, its officers and directors, each Person controlling the Company within the meaning of Exchange Act or the Securities Act and the Third Party StockholderAct, if applicable, and its directors, officersofficers and employees (each, stockholdersa “Company Registration Rights Indemnitee”), managing directorsto the fullest extent lawful, agents, affiliates, consultants, representatives, successors, assigns or general from and limited partners against any and respective controlling Persons with respect to all Damages directly caused by (A) any untrue statement of material fact (or alleged untrue statement of a material fact) contained in any material fact inDisclosure Package, or omission or alleged omission of any material fact from, such Registration Statement, any preliminaryProspectus (including any preliminary Prospectus), final any Free Writing Prospectus or summary Prospectus contained therein, or in any amendment or supplement thereto, (B) any omission (or alleged omission) to state therein any Free Writing Prospectus utilized material fact required to be stated therein or necessary to make the statements therein, in connection therewithlight of the circumstances under which they were made, if not misleading, in each case, to the extent that such untrue statement or alleged statement or omission or alleged omission was made in reliance upon and in strict conformity with written information furnished to the Company or its representatives by or on behalf of the Stockholder or underwriter or Qualified Independent Underwriter, if any, specifically such Investor expressly for use thereintherein or (C) any violation or alleged violation by the Investors of the Securities Act, and the Stockholder shall reimburse such indemnified party for Exchange Act, any legal foreign or other expenses reasonably incurred by such indemnified party in connection with investigating state securities laws or defending any such Claim as such expenses are incurredrule or regulation promulgated under the Securities Act, the Exchange Act or any foreign or state securities laws; provided, however, that the aggregate amount which the Stockholder shall be required to pay pursuant to this Section 3.9 (including pursuant to indemnity, contribution or otherwise) shall in no case be greater than event shall the amount obligations of such Investor hereunder exceed the net proceeds received by the Stockholder upon it from the sale of the its Registrable Securities pursuant related to the Registration Statement giving rise to such Claim; provided, further, that such Stockholder matter in which Damages are sought. Such indemnity and reimbursement of expenses shall not be liable remain in any such case to the extent that prior to the filing full force and effect regardless of any investigation made by or on behalf of a Company Registration Rights Indemnitee and shall survive the Transfer of such Registration Statement or Prospectus or amendment thereof or supplement thereto, or any Free Writing Prospectus utilized in connection therewith, securities by such Stockholder has furnished in writing to the Company information expressly for use in such Registration Statement or Prospectus or any amendment thereof or supplement thereto or Free Writing Prospectus which corrected or made not misleading information previously furnished to the CompanyInvestor.
(iii) Indemnification similar If the indemnification provided for in Section 1.6(a)(i) or Section 1.6(a)(ii) is unavailable to that specified in Sections 3.9(a)(i) and 3.9(a)(ii) (with appropriate modifications) shall be given by the an Investor Registration Rights Indemnitee or a Company and the Stockholder Registration Rights Indemnitee, as applicable, with respect to any required registration Damages referred to therein or other qualification of securities under any applicable securities and state “blue sky” laws.
(iv) If for any reason the foregoing indemnity is unavailable, unenforceable or is insufficient to hold an Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, harmless an indemnified party under Sections 3.9(a)(i), 3.9(a)(ii) or 3.9(a)(iii)as contemplated therein, then each applicable the Company or the Investor, as applicable, in lieu of indemnifying party such Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, shall contribute to the amount paid or payable to by such indemnified party Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, as a result of any Claim such Damages in such proportion as is appropriate to reflect the relative fault of the indemnifying partysuch Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, on the one hand, and the indemnified partyCompany or the Investor, as applicable, on the other hand, in connection with respect to the statements or omissions which resulted in such ClaimDamages as well as any other relevant equitable considerations. The relative fault of the Company or the Investor, as applicable, on the one hand, and of an Investor Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, on the other hand, shall be determined by reference to, among other thingsfactors, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by or on behalf of the indemnifying party Company or the indemnified party Investor, as applicable, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. If, however, ; the allocation provided in the second preceding sentence is not permitted by applicable Law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults but also the relative benefits of the indemnifying party Company and the indemnified party as well as any other relevant equitable considerations. The parties hereto Investors agree that it would not be just and equitable if any contribution pursuant to this Section 3.9(a)(iv1.6(a)(iii) were to be determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to in the preceding sentences of this Section 3.9(a)(iv1.6(a)(iii). The amount paid No Investor Registration Rights Indemnitee or payable in respect of any Claim shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim. No Person Company Registration Rights Indemnitee guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who the Company or the Investor, as applicable, if the Company or the Investor, as applicable, was not guilty of such fraudulent misrepresentation. Notwithstanding anything in this Section 3.9(a)(iv) herein to the contrary, in no indemnifying party (other than event shall the Companyliability of an InvestorSection 1.6(a)(iii) shall be required pursuant to this Section 3.9(a)(iv) to contribute any greater in amount greater than the amount of the net proceeds received by such indemnifying party it from the sale of such Registrable Securities pursuant related to the Registration Statement giving rise to such Claim, less the amount of any indemnification payment made by such indemnifying party pursuant to Sections 3.9(a)(ii) and 3.9(a)(iii). In addition, neither the Stockholder nor any Affiliate thereof shall be required to pay any amount under this Section 3.9(a)(iv) unless such Person or entity would have been required to pay an amount pursuant to Section 3.9(a)(ii) if it had been applicable matter in accordance with its terms.
(v) The indemnity and contribution agreements contained herein shall be in addition to any other rights to which indemnification or contribution which any indemnified party may have pursuant to law or contract and shall remain operative and in full force and effect regardless of any investigation made or omitted by or on behalf of any indemnified party and shall survive the transfer of the Registrable Securities by any such partyfor Damages are sought.
(vi) The indemnification and contribution required by this Section 3.9 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 expense, loss, damage or liability is incurred; provided, that the recipient thereof hereby undertakes to repay such payments if and to the extent it shall be determined by a court of competent jurisdiction that such recipient is not entitled to such payment hereunder.
Appears in 1 contract
Samples: Registration Rights Agreement (Sequans Communications)
Indemnification Rights. (i) In the event of any registration or offer and sale of any securities of the Company under the Securities Act pursuant to this Article IIIArticle II, the Company will, and hereby agrees to, and hereby does, indemnify and hold harmless, to the fullest extent permitted by law, the StockholderHolders, its their Affiliates and, as applicable, their respective directors, officers, employees, stockholders, members or general and limited partners, the Third Party Stockholder, partners in the offering or sale of such securities (and its their respective directors, officers, employees, stockholders, members or general and limited partners), underwriter or Qualified Independent Underwriter, if any, in the offering or sale of such securities, each officer, director, employee, stockholder, managing director, affiliate, representative, successor, assign or partner of such underwriter or Qualified Independent Underwriter, and each other Person, if any, who controls such Third Party Stockholder or any such underwriter or Qualified Independent Underwriter within the meaning of the Securities Act, from and against any and all losses, claims, damages or liabilities, joint or several, actions or proceedings (whether commenced or threatened) and expenses (including reasonable fees of counsel and any amounts paid in any settlement effected with the Company’s consent, which consent shall not be unreasonably withheld or delayed) to which each such indemnified party may become subject under the Securities Act or otherwise in respect thereof (collectively, “Claims”), insofar as such Claims arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement under which such securities were registered under the Securities Act or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary, final or summary Prospectus or any amendment or supplement thereto, together with the documents incorporated by reference therein, or any Free Writing Prospectus utilized in connection therewith, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration, and the Company will reimburse any such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurred; provided, that the Company shall not be liable to any such indemnified party in any such case to the extent such Claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact or omission or alleged omission of a material fact made in such Registration Statement or amendment thereof or supplement thereto or in any such Prospectus or any preliminary, final or summary Prospectus or Free Writing Prospectus in reliance upon and in strict conformity with written information furnished to the Company by or on behalf of such indemnified party specifically for use therein. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party and shall survive the transfer of such securities by the Stockholder or the Third Party StockholderHolders.
(ii) The Stockholder Holders shall indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 3.9(a)(iSection 2.8(a)(i)) to the extent permitted by law, the Company, its officers and directors, and each Person controlling the Company within the meaning of the Securities Act and the Third Party Stockholder, if applicable, and its directors, officers, stockholders, managing directors, agents, affiliates, consultants, representatives, successors, assigns or general and limited partners and respective controlling Persons with respect to any untrue statement or alleged untrue statement of any material fact in, or omission or alleged omission of any material fact from, such Registration Statement, any preliminary, final or summary Prospectus contained therein, or any amendment or supplement thereto, or any Free Writing Prospectus utilized in connection therewith, if such statement or alleged statement or omission or alleged omission was made in reliance upon and in strict conformity with written information furnished to the Company or its representatives by or on behalf of the Stockholder or underwriter or Qualified Independent Underwriter, if anyHolders, specifically for use therein, and the Stockholder Holders shall reimburse such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurred; provided, that the aggregate amount which the Stockholder Holders shall be required to pay pursuant to this Section 3.9 Section 2.8 (including pursuant to indemnity, contribution or otherwise) shall in no case be greater than the amount of the net proceeds received by the Stockholder Holders upon the sale of the Registrable Securities pursuant to the Registration Statement giving rise to such Claim; provided, further, that such Stockholder Holders shall not be liable in any such case to the extent that prior to the filing of any such Registration Statement or Prospectus or amendment thereof or supplement thereto, or any Free Writing Prospectus utilized in connection therewith, such Stockholder has Holders have furnished in writing to the Company information expressly for use in such Registration Statement or Prospectus or any amendment thereof or supplement thereto or Free Writing Prospectus which corrected or made not misleading information previously furnished to the Company.
(iii) Indemnification similar to that specified in Sections 3.9(a)(iSections 2.8(a)(i) and 3.9(a)(ii2.8(a)(ii) (with appropriate modifications) shall be given by the Company and the Stockholder Holders with respect to any required registration or other qualification of securities under any applicable securities and state “blue sky” laws.
(iv) If for any reason the foregoing indemnity is unavailable, unenforceable or is insufficient to hold harmless an indemnified party under Sections 3.9(a)(i2.8(a)(i), 3.9(a)(ii2.8(a)(ii) or 3.9(a)(iii2.8(a)(iii), then each applicable indemnifying party shall contribute to the amount paid or payable to such indemnified party as a result of any Claim in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and the indemnified party, on the other hand, with respect to such Claim. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. If, however, the allocation provided in the second preceding sentence is not permitted by applicable Law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults but also the relative benefits of the indemnifying party and the indemnified party as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if any contribution pursuant to this Section 3.9(a)(ivSection 2.8(a)(iv) were to be determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the preceding sentences of this Section 3.9(a)(ivSection 2.8(a)(iv). The amount paid or payable in respect of any Claim shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. Notwithstanding anything in this Section 3.9(a)(ivSection 2.8(a)(iv) to the contrary, no indemnifying party (other than the Company) shall be required pursuant to this Section 3.9(a)(ivSection 2.8(a)(iv) to contribute any amount greater than the amount of the net proceeds received by such indemnifying party from the sale of Registrable Securities pursuant to the Registration Statement giving rise to such Claim, less the amount of any indemnification payment made by such indemnifying party pursuant to Sections 3.9(a)(ii2.8(a)(ii) and 3.9(a)(iii2.8(a)(iii). In addition, neither the Stockholder Holders nor any Affiliate thereof shall be required to pay any amount under this Section 3.9(a)(ivSection 2.8(a)(iv) unless such Person or entity would have been required to pay an amount pursuant to Section 3.9(a)(iiSection 2.8(a)(ii) if it had been applicable in accordance with its terms.
(v) The indemnity and contribution agreements contained herein shall be in addition to any other rights to indemnification or contribution which any indemnified party may have pursuant to law or contract and shall remain operative and in full force and effect regardless of any investigation made or omitted by or on behalf of any indemnified party and shall survive the transfer of the Registrable Securities by any such party.
(vi) The indemnification and contribution required by this Section 3.9 Section 2.8 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 expense, loss, damage or liability is incurred; provided, that the recipient thereof hereby undertakes to repay such payments if and to the extent it shall be determined by a court of competent jurisdiction that such recipient is not entitled to such payment hereunder.
Appears in 1 contract
Samples: Registration Rights Agreement (Loyalty Ventures Inc.)
Indemnification Rights. (ia) In the event of any registration or offer and sale of any securities of the The Company under the Securities Act pursuant to this Article III, the Company will, and hereby agrees to, and hereby does, shall indemnify and hold harmless, to the fullest extent permitted by law, the Stockholder, its directors, officers, employees, stockholders, members or general and limited partners, the Third Party Stockholder, in the offering or sale of such securities (and its directors, officers, employees, stockholders, members or general and limited partners), underwriter or Qualified Independent Underwriter, if any, in the offering or sale of such securities, each officer, director, employee, stockholder, managing director, affiliate, representative, successor, assign or partner of such underwriter or Qualified Independent Underwriter, Stockholder and each other Personperson, if any, who controls such Third Party Stockholder or any such underwriter or Qualified Independent Underwriter Stockholder within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act, from and against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any and all losses, claims, damages or liabilities, joint or several, actions or proceedings (whether commenced or threatened) and expenses (including reasonable fees of counsel and any amounts paid in any settlement effected with the Company’s consent, which consent shall not be unreasonably withheld or delayedclaim whatsoever) to which each such indemnified party any of them may become subject under the Securities Act, the Exchange Act or otherwise in respect thereof (collectivelyany other statute, “Claims”)common law or otherwise, insofar as such Claims arise arising out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained (x) in such registration statement (as from time to time amended and supplemented); (y) in any Registration Statement under which such securities were registered post effective amendment or amendments or (z) in any application or other document or written communication (in this Section 7 collectively referred to herein as an "application") executed by the Company or based upon written information furnished by the Company filed in any jurisdiction in order to qualify the Registrable Shares under the securities laws thereof or filed with the SEC, any state securities commission or agency, the National Association of Securities Act Dealers, Inc., the Nasdaq Stock Market or any securities exchange, or the omission or alleged omission to state therein therefrom of a material fact required to be stated therein or necessary to make the statements contained therein not misleading, (ii) any untrue unless such statement or alleged untrue statement of a material fact contained in any preliminary, final or summary Prospectus or any amendment or supplement thereto, together with the documents incorporated by reference therein, or any Free Writing Prospectus utilized in connection therewith, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration, and the Company will reimburse any such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurred; provided, that the Company shall not be liable to any such indemnified party in any such case to the extent such Claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact or omission or alleged omission of a material fact was made in such Registration Statement or amendment thereof or supplement thereto or in any such Prospectus or any preliminary, final or summary Prospectus or Free Writing Prospectus in reliance upon and in strict conformity with written information furnished to the Company by or on behalf of such indemnified party specifically for use therein. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party and shall survive the transfer of such securities by the a Stockholder or the Third Party Stockholder.
(ii) The Stockholder shall indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 3.9(a)(i)) to the extent permitted by law, the Company, its officers and directors, each Person controlling the Company within the meaning of the Securities Act and the Third Party Stockholder, if applicable, and its directors, officers, stockholders, managing directors, agents, affiliates, consultants, representatives, successors, assigns or general and limited partners and respective controlling Persons with respect to any untrue statement or alleged untrue statement of any material fact in, or omission or alleged omission of any material fact from, such Registration Statement, any preliminary, final or summary Prospectus contained therein, or any amendment or supplement thereto, or any Free Writing Prospectus utilized in connection therewith, if such statement or alleged statement or omission or alleged omission was made in reliance upon and in strict conformity with written information furnished to the Company or its representatives by or on behalf of the Stockholder or underwriter or Qualified Independent Underwriter, if any, specifically for use therein, and the Stockholder shall reimburse such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurred; provided, that the aggregate amount which the Stockholder shall be required to pay pursuant to this Section 3.9 (including pursuant to indemnity, contribution or otherwise) shall in no case be greater than the amount of the net proceeds received by the Stockholder upon the sale of the Registrable Securities pursuant to the Registration Statement giving rise to such Claim; provided, further, that such Stockholder shall not be liable in any such case to the extent that prior to the filing of any such Registration Statement or Prospectus or amendment thereof or supplement thereto, or any Free Writing Prospectus utilized in connection therewith, such Stockholder has furnished in writing to the Company information expressly for use in such Registration Statement or Prospectus or registration statement, any amendment thereof or supplement thereto or Free Writing Prospectus any application, as the case may be. If any action is brought against any Stockholder or any controlling person of such Stockholder in respect of which corrected or made not misleading information previously furnished to the Company.
(iii) Indemnification similar to that specified in Sections 3.9(a)(i) and 3.9(a)(ii) (with appropriate modifications) shall indemnity may be given by sought against the Company and the Stockholder with respect to any required registration or other qualification of securities under any applicable securities and state “blue sky” laws.
(iv) If for any reason the foregoing indemnity is unavailable, unenforceable or is insufficient to hold harmless an indemnified party under Sections 3.9(a)(i), 3.9(a)(ii) or 3.9(a)(iii), then each applicable indemnifying party shall contribute to the amount paid or payable to such indemnified party as a result of any Claim in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and the indemnified party, on the other hand, with respect to such Claim. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. If, however, the allocation provided in the second preceding sentence is not permitted by applicable Law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults but also the relative benefits of the indemnifying party and the indemnified party as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if any contribution pursuant to this Section 3.9(a)(iv) were to be determined by pro rata allocation 7(a), such Stockholder or by any other method of allocation which does not take account of the equitable considerations referred to in the preceding sentences of this Section 3.9(a)(iv). The amount paid or payable in respect of any Claim shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim. No Person guilty of fraudulent misrepresentation (controlling person shall, within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. Notwithstanding anything in this Section 3.9(a)(iv) to the contrary, no indemnifying party (other than the Company) shall be required pursuant to this Section 3.9(a)(iv) to contribute any amount greater than the amount of the net proceeds received by such indemnifying party from the sale of Registrable Securities pursuant to the Registration Statement giving rise to such Claim, less the amount of any indemnification payment made by such indemnifying party pursuant to Sections 3.9(a)(ii) and 3.9(a)(iii). In addition, neither the Stockholder nor any Affiliate thereof shall be required to pay any amount under this Section 3.9(a)(iv) unless such Person or entity would have been required to pay an amount pursuant to Section 3.9(a)(ii) if it had been applicable in accordance with its terms.
(v) The indemnity and contribution agreements contained herein shall be in addition to any other rights to indemnification or contribution which any indemnified party may have pursuant to law or contract and shall remain operative and in full force and effect regardless of any investigation made or omitted by or on behalf of any indemnified party and shall survive the transfer of the Registrable Securities by any such party.
(vi) The indemnification and contribution required by this Section 3.9 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 expense, loss, damage or liability is incurred; provided, that the recipient thereof hereby undertakes to repay such payments if and to the extent it shall be determined by a court of competent jurisdiction that such recipient is not entitled to such payment hereunder.sixty
Appears in 1 contract
Samples: Registration Rights Agreement (U S Interactive Inc/Pa)
Indemnification Rights. (i) In the event of any registration or other offer and sale of any securities of the Company under the Securities Act pursuant to this Article IIIII, the Company will, and hereby agrees to, and hereby does, shall indemnify and hold harmlessharmless the Shareholder whose Shares are included in a Registration Statement and each Person, if any, that controls the Shareholder within the meaning of Section 15 of the Securities Act (each a “controlling person”), their respective officers, directors, employees, stockholders, general and limited partners, members, Representatives and Affiliates, and each controlling person of each Affiliate of any of the foregoing Persons (each, a “Shareholder Registration Rights Indemnitee”), to the fullest extent permitted by law, the Stockholder, its directors, officers, employees, stockholders, members or general and limited partners, the Third Party Stockholder, in the offering or sale of such securities (and its directors, officers, employees, stockholders, members or general and limited partners), underwriter or Qualified Independent Underwriter, if any, in the offering or sale of such securities, each officer, director, employee, stockholder, managing director, affiliate, representative, successor, assign or partner of such underwriter or Qualified Independent Underwriter, and each other Person, if any, who controls such Third Party Stockholder or any such underwriter or Qualified Independent Underwriter within the meaning of the Securities Actlawful, from and against any and all losses, claims, damages or liabilities, joint or several, actions or proceedings (whether commenced or threatened) and expenses (including reasonable fees of counsel and any amounts paid in any settlement effected with the Company’s consent, which consent shall not be unreasonably withheld or delayed) to which each such indemnified party may become subject under the Securities Act or otherwise in respect thereof (collectively, “Claims”), insofar as such Claims arise Damages arising out of or are based upon (iA) any untrue statement of material fact (or alleged untrue statement of a material fact fact) contained in any Disclosure Package, any Registration Statement under which such securities were registered under the Securities Act Statement, any Prospectus (including any preliminary Prospectus), any Free Writing Prospectus, or the in any amendment or supplement thereto or (B) any omission or alleged omission to state therein a any material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary, final or summary Prospectus or any amendment or supplement thereto, together with the documents incorporated by reference therein, or any Free Writing Prospectus utilized in connection therewith, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration, and the Company will reimburse any such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurredmisleading; provided, provided that the Company shall not be liable to any such indemnified party in any such case a Shareholder Registration Rights Indemnitee to the extent that any such Claim arises Damages are arising out of or is based upon any untrue statement or omission (or alleged untrue statement of a material fact or omission or alleged omission of a material fact omission) made in such Disclosure Package, Registration Statement Statement, Prospectus (including any preliminary Prospectus), Free Writing Prospectus, or any amendment thereof or supplement thereto or in any such Prospectus or any preliminarythereto, final or summary Prospectus or Free Writing Prospectus in reliance upon and in strict conformity with written information about such Shareholder furnished to the Company by or on behalf of such indemnified party specifically the Shareholder expressly for use therein. This indemnity agreement shall be in addition to any liability which the Company may otherwise have. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party any Shareholder Registration Rights Indemnitee and shall survive the transfer of such securities by the Stockholder or the Third Party Stockholdersuch Shareholder.
(ii) The Stockholder Shareholder whose Shares are included in a Registration Statement shall indemnify and hold harmless (in the same manner Company and each of its officers who execute any of the Company’s filings with the SEC pursuant to the same extent as set forth in Section 3.9(a)(i)) to the extent permitted by law, the Company, its officers and directors, each Person controlling the Company within the meaning of Exchange Act or the Securities Act and the Third Party StockholderAct, if applicable, and its directors, officersemployees, stockholders, managing directorsand each Person, agentsif any, affiliatesthat controls the Company and each Affiliate of any of the foregoing Persons (each, consultantsa “Company Registration Rights Indemnitee”), representativesto the fullest extent lawful, successors, assigns from and against any and all Damages arising out of or general and limited partners and respective controlling Persons with respect to based upon (A) any untrue statement of material fact (or alleged untrue statement of a material fact) contained in any material fact inDisclosure Package, or omission or alleged omission of any material fact from, such Registration Statement, any preliminaryProspectus (including any preliminary Prospectus), final any Free Writing Prospectus or summary Prospectus contained therein, or in any amendment or supplement theretothereto or (B) any omission (or alleged omission) to state therein any material fact required to be stated therein or necessary to make the statements therein, or any Free Writing Prospectus utilized in connection therewithlight of the circumstances under which they were made, if not misleading, in each case, to the extent that such untrue statement or alleged statement or omission or alleged omission was made in reliance upon and in strict conformity with written information furnished to the Company or its representatives by or on behalf of the Stockholder or underwriter or Qualified Independent Underwriter, if any, specifically such Shareholder expressly for use therein, and the Stockholder shall reimburse such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurred; provided, however, that the aggregate amount which the Stockholder shall be required to pay pursuant to this Section 3.9 (including pursuant to indemnity, contribution or otherwise) shall in no case be greater than event shall the amount obligations of the Shareholder hereunder exceed the net proceeds received by the Stockholder upon it from the sale of the its Registrable Securities pursuant related to the Registration Statement giving rise to such Claim; provided, further, that such Stockholder matter in which Damages are sought. Such indemnity and reimbursement of expenses shall not be liable remain in any such case to the extent that prior to the filing full force and effect regardless of any investigation made by or on behalf of a Company Registration Rights Indemnitee and shall survive the Transfer of such Registration Statement or Prospectus or amendment thereof or supplement thereto, or any Free Writing Prospectus utilized in connection therewith, securities by such Stockholder has furnished in writing to the Company information expressly for use in such Registration Statement or Prospectus or any amendment thereof or supplement thereto or Free Writing Prospectus which corrected or made not misleading information previously furnished to the CompanyShareholder.
(iii) Indemnification similar If the indemnification provided for in Section 2.8(a)(i) or Section 2.8(a)(ii) is unavailable to that specified in Sections 3.9(a)(i) and 3.9(a)(ii) (with appropriate modifications) shall be given by the a Shareholder Registration Rights Indemnitee or a Company and the Stockholder Registration Rights Indemnitee, as applicable, with respect to any required registration Damages referred to therein or other qualification of securities under any applicable securities and state “blue sky” laws.
(iv) If for any reason the foregoing indemnity is unavailable, unenforceable or is insufficient to hold a Shareholder Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, harmless an indemnified party under Sections 3.9(a)(i), 3.9(a)(ii) or 3.9(a)(iii)as contemplated therein, then each applicable the Company or the Shareholder, as applicable, in lieu of indemnifying party such Shareholder Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, shall contribute to the amount paid or payable to by such indemnified party Shareholder Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, as a result of any Claim such Damages in such proportion as is appropriate to reflect the relative fault of the indemnifying partysuch Shareholder Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, on the one hand, and the indemnified partyCompany or the Shareholder, as applicable, on the other hand, in connection with respect to the statements or omissions which resulted in such ClaimDamages as well as any other relevant equitable considerations. The relative fault of the Company or the Shareholder, as applicable, on the one hand, and of a Shareholder Registration Rights Indemnitee or Company Registration Rights Indemnitee, as applicable, on the other hand, shall be determined by reference to, among other thingsfactors, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by or on behalf of the indemnifying party Company or the indemnified party Shareholder, as applicable, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. If, however, ; the allocation provided in the second preceding sentence is not permitted by applicable Law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults but also the relative benefits of the indemnifying party Company and the indemnified party as well as any other relevant equitable considerations. The parties hereto Shareholder agree that it would not be just and equitable if any contribution pursuant to this Section 3.9(a)(iv2.8(a)(iii) were to be determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to in the preceding sentences of this Section 3.9(a)(iv2.8(a)(iii). The amount paid No Shareholder Registration Rights Indemnitee or payable in respect of any Claim shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim. No Person Company Registration Rights Indemnitee guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who the Company or the Shareholder, as applicable, if the Company or the Shareholder, as applicable, was not guilty of such fraudulent misrepresentation. Notwithstanding anything in this Section 3.9(a)(iv) herein to the contrary, in no indemnifying party (other than event shall the Company) shall be required liability of the Shareholder pursuant to this Section 3.9(a)(iv2.8(a)(iii) to contribute any be greater in amount greater than the amount of the net proceeds received by such indemnifying party it from the sale of such Registrable Securities pursuant related to the Registration Statement giving rise to such Claim, less the amount of any indemnification payment made by such indemnifying party pursuant to Sections 3.9(a)(ii) and 3.9(a)(iii). In addition, neither the Stockholder nor any Affiliate thereof shall be required to pay any amount under this Section 3.9(a)(iv) unless such Person or entity would have been required to pay an amount pursuant to Section 3.9(a)(ii) if it had been applicable matter in accordance with its terms.
(v) The indemnity and contribution agreements contained herein shall be in addition to any other rights to which indemnification or contribution which any indemnified party may have pursuant to law or contract and shall remain operative and in full force and effect regardless of any investigation made or omitted by or on behalf of any indemnified party and shall survive the transfer of the Registrable Securities by any such partyfor Damages are sought.
(vi) The indemnification and contribution required by this Section 3.9 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 expense, loss, damage or liability is incurred; provided, that the recipient thereof hereby undertakes to repay such payments if and to the extent it shall be determined by a court of competent jurisdiction that such recipient is not entitled to such payment hereunder.
Appears in 1 contract
Samples: Stockholders' Agreement (American Axle & Manufacturing Holdings Inc)
