Common use of Indemnification Unavailable Clause in Contracts

Indemnification Unavailable. If the indemnification provided for in this Section 4 is unavailable as a matter of law to an indemnified party in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under any such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by such indemnified party on the one hand and the indemnifying parties on the other or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of such indemnified party on the one hand and the indemnifying parties on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of such indemnified party and the indemnifying parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by such parties and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissions. The parties agree that it would not be just and equitable if contribution pursuant to this Section 4.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, defending or settling any such action or claim. Notwithstanding the foregoing, the liability of a Holder under this Section 4.4 shall be limited to the net proceeds received by such Holder.

Indemnification Unavailable. If the indemnification provided for in this Section 4 3 is held by a court of competent jurisdiction to be unavailable as a matter of law to an indemnified party in Indemnified Party with respect of to any lossesloss, claimsliability, damages claim, damage or liabilities expense referred to thereinherein, then each indemnifying party under any such paragraphIndemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party hereunder, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossesloss, claimsliability, damages claim, damage or liabilities (i) expense in such proportion as is appropriate to reflect the relative benefits received by such indemnified party fault of the Indemnifying Party, on the one hand hand, and of the indemnifying parties Indemnified Party, on the other or (ii) if the allocation provided by clause (i) above is not permitted by applicable lawother, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of such indemnified party on the one hand and the indemnifying parties on the other in connection with the statements or omissions which that resulted in such lossesloss, claimsliability, damages claim, damage or liabilitiesexpense, as well as any other relevant equitable considerations; provided, however, that no contribution by any holder of Registrable Securities and/or Management Stock, when combined with any amounts paid by such holder pursuant to Section 3.2, shall exceed the net proceeds from the offering payable to such holder or any other person to whom such holder shall direct. The relative fault of such indemnified party the Indemnifying Party and of the indemnifying parties Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged allegedly untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by such parties the Indemnifying Party or by the Indemnified Party and the parties' ’ relative intent, knowledge, access to information information, and opportunity to correct or prevent such statement or omissions. The parties agree that it would not be just and equitable if contribution pursuant to this Section 4.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, defending or settling any such action or claim. Notwithstanding the foregoing, the liability of a Holder under this Section 4.4 shall be limited to the net proceeds received by such Holderomission.

Indemnification Unavailable. If the indemnification provided for --------------------------- in this Section 4 is 9 shall for any reason be unavailable as a matter of law to or insufficient to hold harmless an indemnified party under Section 9(a) or 9(b) in respect of any lossesloss, claimsclaim, damages damage or liabilities liability, or any action in respect thereof, referred to therein, then each indemnifying party under any such paragraphshall, in lieu of indemnifying such indemnified party thereunderparty, shall contribute to the amount paid or payable by such indemnified party as a result of such lossesloss, claimsclaim, damages damage or liabilities (i) liability, or action in respect thereof, in such proportion as is appropriate to reflect the relative benefits received by such indemnified party fault of the Company and the Principal Subsidiaries, on the one hand hand, and the indemnifying parties Participants, on the other or (ii) if the allocation provided by clause (i) above is not permitted by applicable lawhand, in such proportion as is appropriate with respect to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of such indemnified party on the one hand and the indemnifying parties on the other in connection with the statements or omissions which resulted in such lossesloss, claimsclaim, damages damage or liabilitiesliability, or action in respect thereof, as well as any other relevant equitable considerations. The relative fault of such indemnified party and the indemnifying parties 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 such the Company and the Principal Subsidiaries, on the one hand, or the Participants, on the other hand, the intent of the parties and the parties' their relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionsomission. The parties agree Each of the Company and the Principal Subsidiaries and the Participants agrees that it would not be just and equitable if contribution contributions pursuant to this Section 4.4 9(d) were to be determined by pro rata allocation (even if either the Participants or the Company and the Principal Subsidiaries, as the case may be, were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to aboveherein. The amount paid or payable by an indemnified party as a result of the lossesloss, claimsclaim, damages and liabilities damage or liability, or action in respect thereof, referred to above in this Section 9(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, investigating or defending or settling any such action or claim. Notwithstanding the foregoing, the liability provisions of a Holder under this Section 4.4 9(d), no Participant shall be limited required to indemnify or contribute any amount in excess of the net amount by which proceeds received by the Participants from an offering of the Notes exceeds the amount of any damages which such HolderParticipant has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. 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. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity. The Participants' obligations to contribute as provided in this Section 9(d) are several and not joint.

Indemnification Unavailable. If the indemnification provided for --------------------------- in this Section 4 is 9 shall for any reason be unavailable as a matter of law to or insufficient to hold harmless an indemnified party under Section 9(a) or 9(b) in respect of any lossesloss, claimsclaim, damages damage or liabilities liability, or any action in respect thereof, referred to therein, then each indemnifying party under any such paragraphshall, in lieu of indemnifying such indemnified party thereunderparty, shall contribute to the amount paid or payable by such indemnified party as a result of such lossesloss, claimsclaim, damages damage or liabilities liability, or action in respect thereof, (i) in such proportion as is shall be appropriate to reflect the relative benefits received by such indemnified party the Company, on the one hand hand, and the indemnifying parties Participants, on the other hand, from the offering of the Exchange Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of such indemnified party the Company, on the one hand hand, and the indemnifying parties Participants, on the other in connection hand, with respect to the statements or omissions which resulted in such lossesloss, claimsclaim, damages damage or liabilitiesliability, or action in respect thereof, as well as any other relevant equitable considerations. The relative fault of such indemnified party benefits received by the Company, on the one hand, and the indemnifying parties Participants, on the other hand, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Exchange Notes purchased under this Agreement (before deducting expenses) received by the Company, on the one hand, and the total underwriting commissions and discounts received by the Participants with respect to the Notes purchased under the Purchase Agreement, on the other hand, bear to the total gross proceeds from the offering of the Exchange Notes under this Agreement, in each case as set forth in the table on the cover page of the Memorandum. 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 such the Company, on the one hand, or the Participants, on the other hand, the intent of the parties and the parties' their relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionsomission. The parties agree Each of the Company and the Participants agrees that it would not be just and equitable if contribution contributions pursuant to this Section 4.4 9(d) were to be determined by pro rata allocation (even if either the Participants or the Company, as the case may be, were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to aboveherein. The amount paid or payable by an indemnified party as a result of the lossesloss, claimsclaim, damages and liabilities damage or liability, or action in respect thereof, referred to above in this Section 9(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, investigating or defending or settling any such action or claim. Notwithstanding the foregoing, the liability provisions of a Holder under this Section 4.4 9(d), no Participant shall be limited required to indemnify or contribute any amount in excess of the net amount by which proceeds received by the Participants from an offering of the Exchange Notes exceeds the amount of any damages which such HolderParticipant has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. 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. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity. The Participants' obligations to contribute as provided in this Section 9(d) are several in proportion to their respective underwriting obligations and not joint.

Indemnification Unavailable. If the indemnification provided for in this Section 4 is unavailable as a matter of law to an indemnified party in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under any such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by such indemnified party on the one hand and the indemnifying parties on the other or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of such indemnified party on the one hand and the indemnifying parties on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of such indemnified party and the indemnifying parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by such parties and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissions. The parties agree that it would not be just and equitable if contribution pursuant to this Section 4.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, defending or settling any such action or claim. Notwithstanding the foregoing, the liability of a Holder Shareholder under this Section 4.4 shall be limited to the net proceeds received by such HolderShareholder.

Indemnification Unavailable. If the indemnification provided --------------------------- for in this Section 4 is 9 shall for any reason be unavailable as a matter of law to or insufficient to hold harmless an indemnified party under Section 9(a) or 9(b) in respect of any lossesloss, claimsclaim, damages damage or liabilities liability, or any action in respect thereof, referred to therein, then each indemnifying party under any such paragraphshall, in lieu of indemnifying such indemnified party thereunderparty, shall contribute to the amount paid or payable by such indemnified party as a result of such lossesloss, claimsclaim, damages damage or liabilities liability, or action in respect thereof, (i) in such proportion as is shall be appropriate to reflect the relative benefits received by such indemnified party the Company and the Principal Subsidiaries, on the one hand hand, and the indemnifying parties Participants, on the other hand, from the offering of the Exchange Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of such indemnified party the Company and the Principal Subsidiaries, on the one hand hand, and the indemnifying parties Participants, on the other in connection hand, with respect to the statements or omissions which resulted in such lossesloss, claimsclaim, damages damage or liabilitiesliability, or action in respect thereof, as well as any other relevant equitable considerations. The relative fault of such indemnified party benefits received by the Company and the indemnifying parties Principal Subsidiaries, on the one hand, and the Participants, on the other hand, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Exchange Notes purchased under this Agreement (before deducting expenses) received by the Company and the Principal Subsidiaries, on the one hand, and the total underwriting commissions and discounts received by the Participants with respect to the Notes purchased under the Purchase Agreement, on the other hand, bear to the total gross proceeds from the offering of the Exchange Notes under this Agreement, in each case as set forth in the table on the cover page of the Memorandum. 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 such the Company and the Principal Subsidiaries, on the one hand, or the Participants, on the other hand, the intent of the parties and the parties' their relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissions. The parties agree that it would not be just and equitable if contribution pursuant to this Section 4.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, defending or settling any such action or claim. Notwithstanding the foregoing, the liability of a Holder under this Section 4.4 shall be limited to the net proceeds received by such Holder.to

Indemnification Unavailable. If the indemnification provided for in this Section 4 5 is unavailable as a matter of law to an indemnified party in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under any such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by such indemnified party on the one hand and the indemnifying parties on the other or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of such indemnified party on the one hand and the indemnifying parties on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of such indemnified party and the indemnifying parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by such parties and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissions. The parties agree that it would not be just and equitable if contribution pursuant to this Section 4.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, defending or settling any such action or claim. Notwithstanding the foregoing, the liability of a Holder under this Section 4.4 shall be limited to the net proceeds received by such Holder.untrue

Indemnification Unavailable. If the indemnification provided for in this Section 4 3.6 is unavailable as a matter of law to an indemnified party in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under any such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by such indemnified party on the one hand and the indemnifying parties on the other or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of such indemnified party on the one hand and the indemnifying parties on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of such indemnified party and the indemnifying parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by such parties and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissions. The parties agree that it would not be just and equitable if contribution pursuant to this Section 4.4 3.6(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, defending or settling any such action or claim. Notwithstanding the foregoing, the liability of a Holder under this Section 4.4 shall be limited to the net proceeds received by such Holder.

Indemnification Unavailable. If the indemnification provided for in this Section 4 is 9 shall for any reason be unavailable as a matter of law to or insufficient to hold harmless an indemnified party under Section 9(a) or 9(b) in respect of any lossesloss, claimsclaim, damages damage or liabilities liability, or any action in respect thereof, referred to therein, then each indemnifying party under any such paragraphshall, in lieu of indemnifying such indemnified party thereunderparty, shall contribute to the amount paid or payable by such indemnified party as a result of such lossesloss, claimsclaim, damages damage or liabilities (i) liability, or action in respect thereof, in such proportion as is appropriate to reflect the relative benefits received by such indemnified party fault of the Company, on the one hand hand, and the indemnifying parties Participants, on the other or (ii) if the allocation provided by clause (i) above is not permitted by applicable lawhand, in such proportion as is appropriate with respect to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of such indemnified party on the one hand and the indemnifying parties on the other in connection with the statements or omissions which resulted in such lossesloss, claimsclaim, damages damage or liabilitiesliability, or action in respect thereof, as well as any other relevant equitable considerations. The relative fault of such indemnified party and the indemnifying parties 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 such the Company, on the one hand, or the Participants, on the other hand, the intent of the parties and the parties' their relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionsomission. The parties agree Each of the Company and the Participants agrees that it would not be just and equitable if contribution contributions pursuant to this Section 4.4 9(d) were to be determined by pro rata allocation (even if either the Participants or the Company, as the case may be, were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to aboveherein. The amount paid or payable by an indemnified party as a result of the lossesloss, claimsclaim, damages and liabilities damage or liability, or action in respect thereof, referred to above in this Section 9(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, investigating or defending or settling any such action or claim. Notwithstanding the foregoing, the liability provisions 26 of a Holder under this Section 4.4 9(d), no Participant shall be limited required to indemnify or contribute any amount in excess of the net amount by which proceeds received by the Participants from an offering of the Notes exceeds the amount of any damages which such HolderParticipant has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. 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. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity. The Participants' obligations to contribute as provided in this Section 9(d) are several and not joint.

Indemnification Unavailable. If the indemnification provided for in this Section 4 is 9 shall for any reason be unavailable as a matter of law to or insufficient to hold harmless an indemnified party under Section 9(a) or 9(b) in respect of any lossesloss, claimsclaim, damages damage or liabilities liability, or any action in respect thereof, referred to therein, then each indemnifying party under any such paragraphshall, in lieu of indemnifying such indemnified party thereunderparty, shall contribute to the amount paid or payable by such indemnified party as a result of such lossesloss, claimsclaim, damages damage or liabilities (i) liability, or action in respect thereof, in such proportion as is appropriate to reflect the relative benefits received by such indemnified party fault of the Company and the Guarantor, on the one hand hand, and the indemnifying parties Participants, on the other or (ii) if the allocation provided by clause (i) above is not permitted by applicable lawhand, in such proportion as is appropriate with respect to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of such indemnified party on the one hand and the indemnifying parties on the other in connection with the statements or omissions which resulted in such lossesloss, claimsclaim, damages damage or liabilitiesliability, or action in respect thereof, as well as any other relevant equitable considerations. The relative fault of such indemnified party and the indemnifying parties 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 such the Company and the Guarantor, on the one hand, or the Participants, on the other hand, the intent of the parties and the parties' their relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionsomission. The parties agree Each of the Company and the Guarantor and the Participants agrees that it would not be just and equitable if contribution contributions pursuant to this Section 4.4 9(d) were to be determined by pro rata allocation (even if either the Participants or the Company and the Guarantor, as the case may be, were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to aboveherein. The amount paid or payable by an indemnified party as a result of the lossesloss, claimsclaim, damages and liabilities damage or liability, or action in respect thereof, referred to above in this Section 9(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, investigating or defending or settling any such action or claim. Notwithstanding the foregoing, the liability provisions of a Holder under this Section 4.4 9(d), no Participant shall be limited required to indemnify or contribute any amount in excess of the net amount by which proceeds received by the Participants from an offering of the Securities exceeds the amount of any damages which such HolderParticipant has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. 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. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity. The Participants' obligations to contribute as provided in this Section 9(d) are several and not joint.

Indemnification Unavailable. If the indemnification provided for in this Section 4 5 is unavailable as a matter of law to an indemnified party in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under any such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by such indemnified party on the one hand and the indemnifying parties on the other or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of such indemnified party on the one hand and the indemnifying parties on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of such indemnified party and the indemnifying parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by such parties and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissions. The parties agree that it would not be just and equitable if contribution pursuant to this Section 4.4 5.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, defending or settling any such action or claim. Notwithstanding the foregoing, the liability of Wes-Xxx, xxe Foundation, the Greaxxxxxx Xxxritable Remainder Trust or a Holder under this Section 4.4 5.4 shall be limited to the net proceeds received by Wes-Xxx, xxe Foundation, the Greaxxxxxx Xxxritable Remainder Trust or such HolderHolder (as the case may be).

Indemnification Unavailable. If the indemnification provided for in this Section 4 is unavailable as a matter of law to an indemnified party in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under any such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by such indemnified party on the one hand and the indemnifying parties on the other or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of such indemnified party on the one hand and the indemnifying parties on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of such indemnified party and the indemnifying parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by such parties and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissions. The parties agree that it would not be just and equitable if contribution pursuant to this Section 4.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, defending or settling any such action or claim. Notwithstanding the foregoing, the liability of a Holder the respective Shareholders under this Section 4.4 shall be limited to the net proceeds received by each such HolderStockholder.

Indemnification Unavailable. If the indemnification provided for in this Section 4 is unavailable as a matter of law to an indemnified party in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under any such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by such indemnified party on the one hand and the indemnifying parties on the other or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of such indemnified party on the one hand and the indemnifying parties on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of such indemnified party and the indemnifying parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by such parties and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissions. The parties agree that it would not be just and equitable if contribution pursuant to this Section 4.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, defending or settling any such action or claim. Notwithstanding the foregoing, the liability of a Holder the respective Stockholders under this Section 4.4 shall be limited to the net proceeds received by each such HolderStockholder.

Indemnification Unavailable. If the indemnification provided for in this Section 4 is unavailable as a matter of law to an indemnified party in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under any such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by such indemnified party on the one hand and the indemnifying parties on the other or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of such indemnified party on the one hand and the indemnifying parties on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of such indemnified party and the indemnifying parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by such parties and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissions. The parties agree that it would not be just and equitable if contribution pursuant to this Section 4.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, defending or settling any such action or claim. Notwithstanding the foregoing, the liability of S. Armour and R. Price or a Holder under this Section 4.4 shall be limited to the net proceeds received by S. Armour and R. Price or such HolderHolder (as the case may be).

Indemnification Unavailable. If the indemnification provided for in this Section 4 is unavailable as a matter of law to an indemnified party in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under any such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by such indemnified party on the one hand and the indemnifying parties on the other or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of such indemnified party on the one hand and the indemnifying parties on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of such indemnified party and the indemnifying parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by such parties and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissions. The parties agree that it would not be just and equitable if contribution pursuant to this Section 4.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, defending or settling any such action or claim. Notwithstanding the foregoing, the liability of a any Robexxxxx Xxxreholder or Holder under this Section 4.4 shall be limited to the net proceeds received by such HolderRobexxxxx Xxxreholder or Holder (as the case may be).