Indemnity by the Corporation. 11.1 The Corporation shall protect, hold harmless and indemnify each of the Underwriters, each person (a “Control Person”), if any, who controls any of the Underwriters within the meaning of Section 15 of the U.S. Securities Act and their respective affiliates and their and each of their Control Persons and affiliates, respective directors, officers, employees, shareholders and agents (as applicable) (collectively, the “Indemnified Parties” and individually an “Indemnified Party”) from and against all losses, claims, damages, liabilities, costs and expenses, including, without limitation, all amounts paid to settle actions, satisfy judgments or awards or to enforce this indemnity and all reasonable legal fees and expenses on a solicitor and own client basis (collectively, a “Claim”) caused by or arising directly or indirectly by reason of the transactions contemplated in, or the services provided under, this Agreement including, without limitation: (a) any breach by the Corporation of, or default under, any covenant or agreement of the Corporation in this Agreement which has not been waived by the Underwriters under this Agreement or any inaccuracy of any representation or warranty of the Corporation under this Agreement or any other document to be delivered pursuant hereto or the failure of the Corporation to comply with any of its obligations hereunder or thereunder; (b) any information or statement (except any information or statement relating to the Underwriters, or any of them, provided by the Underwriters) contained in any of the Canadian Prospectus, the U.S. Prospectus, the Registration Statement, the Warrant Registration Statement, the Free Writing Prospectus or the Issuer Free Writing Prospectus (including any documents incorporated by reference therein) or any Supplemental Material or additional or ancillary material, information, evidence, return, report, application statement or document (collectively the “Additional Materials”) being or being alleged to be a misrepresentation or untrue or any omission or alleged omission to state in those documents any material fact (except facts relating to the Underwriters, or any of them, provided by the Underwriters) required to be stated in those documents or necessary to make any of the statements therein not misleading in light of the circumstances in which they were made; (c) any order made or any inquiry, investigation or proceeding instituted, threatened or announced by any court, securities regulatory authority or stock exchange or by any other competent authority, based upon any untrue statement, omission or misrepresentation or alleged untrue statement, omission or misrepresentation (except a statement, omission or misrepresentation relating to the Underwriters, or any of them, provided by the Underwriters) contained in any of the Canadian Prospectus, the U.S. Prospectus, the Registration Statement, the Warrant Registration Statement, the Free Writing Prospectus or the Issuer Free Writing Prospectus (or any document incorporated by reference therein) or any Supplemental Material or any Additional Materials which operates to prevent or restrict the trading in or the sale or distribution of the Units, Additional Common Shares, Additional Warrants and Warrant Shares; (d) the Corporation not complying with any requirement of any Applicable Securities Laws or U.S. securities laws relating to the Offering and any regulatory requirements (including any filing or notice in connection in any U.S. federal or state securities laws or rules of any stock exchange or quotation system); (e) any order made by any regulatory authority that trading in or distribution of any of the Corporation’s securities is to cease or be suspended, including an order prohibiting the trade or distribution of any of the securities referred to herein; (f) the failure or inability of the Corporation to allot, issue and deliver any or all of the certificates representing the Units and Warrant Shares and, if applicable, the Additional Common Shares and/or Additional Warrants in a form and denomination satisfactory to the Underwriters at the time and place as the Underwriters may reasonably require for the completion of the transaction referred to herein; and (g) a determination made by any competent authority setting aside the trade or distribution of any of the securities referred to herein, other than as a result of a breach by any of the Underwriters of its covenants herein; and shall reimburse the Indemnified Parties for all reasonable costs, charges and expenses, as incurred, which any of them may pay or incur in connection with investigating or disputing any Claim or action related thereto including the fees and expenses of legal counsel on a solicitor and own client basis and including reimbursement paid to the Underwriters for the time spent by the Indemnified Parties in connection with any Claim payable at the normal per diem rates of such Indemnified Parties. This indemnity shall be in addition to any liability which the Corporation may otherwise have. 11.2 If any Claim contemplated by this Section 11 is asserted against any of the Indemnified Parties, or if any potential Claim contemplated by this Section 11 comes to the knowledge of any of the Indemnified Parties, the Indemnified Party concerned shall notify in writing the Corporation as soon as reasonably practicable, of the nature of the Claim (provided that any failure to so notify in respect of any potential Claim shall not affect the liability of the Corporation under this Section 11, except to the extent that such delay prejudices the Corporation’s ability to contest such Claim). The Corporation shall, subject to the following, be entitled (but not required) to assume the defence on behalf of the Indemnified Party of any suit brought to enforce the Claim; provided that the defence shall be through legal counsel selected by the Corporation and acceptable to the Indemnified Party, acting reasonably, and no admission of liability shall be made by the Corporation without the prior written consent of the Indemnified Party. An Indemnified Party shall have the right to employ separate counsel in any such suit and participate in its defence but the fees and expenses of that counsel shall be at the expense of the Indemnified Parties unless: (a) the Corporation fails to assume the defence of the suit on behalf of the Indemnified Party within a reasonable time of receiving notice of the suit; (b) the employment of that counsel has been authorized in writing by the Corporation; or (c) the named parties to the suit (including any added or third parties) including the Corporation and the Indemnified Party have been advised in writing by outside counsel that representation of the Indemnified Party by counsel for the Corporation is inappropriate as a result of the potential or actual conflicting interests of those represented; (in each of the cases set out in Subsections 11.2(a), (b) or (c), the Corporation shall not have the right to assume the defence of the suit on behalf of the Indemnified Party, but the Corporation shall be liable to pay the reasonable fees and expenses of separate counsel for all Indemnified Parties and, in addition, of local counsel in each applicable jurisdiction on a solicitor and own client basis). Notwithstanding the foregoing, no settlement may be made by an Indemnified Party without the prior written consent of the Corporation, which consent shall not be unreasonably withheld. 11.3 The Corporation hereby acknowledges and agrees that, with respect to this Section 11, the Underwriters are contracting on their own behalf and as agents for their Control Persons, affiliates, directors, officers, employees, shareholders and agents and each of their Control Persons and affiliates’ respective directors, officers, employees, shareholders, and agents (collectively, the “Beneficiaries”). In this regard, each of the Underwriters shall act as trustee for the Beneficiaries of the covenants of the Corporation under this Section 11 with respect to the Beneficiaries and accept these trusts and will hold and enforce those covenants on behalf of the Beneficiaries. 11.4 In order to provide for just and equitable contribution in circumstances in which an indemnity provided in Section 11 would otherwise be available in accordance with its terms but is, for any reason not solely attributable to any one or more of the Indemnified Parties, held to be unavailable to or unenforceable by the Indemnified Parties or enforceable otherwise than in accordance with its terms, the Underwriters and the Corporation, as the case may be, shall contribute to the aggregate of all Claims (other than losses of profits in connection with the distribution of the Units and the Additional Common Shares and/or Additional Warrants) of the nature contemplated in Section 11 and suffered or incurred by the Indemnified Parties in proportions reflective of the relative benefits received by the Corporation and any Indemnified Party, as well as their relative fault and any other relevant equitable considerations, as determined by a court of competent jurisdiction; provided that the Underwriters shall not in any event be liable to contribute, in the aggregate, any amount in excess of the Underwriters’ Fee or any portion actually received. 11.5 No party guilty of gross negligence, wilful misconduct, fraud or fraudulent misrepresentation shall be entitled to claim indemnification under this Section 11 or contribution under Section 11.4 from any person who is not guilty of such gross negligence, wilful misconduct, fraud or fraudulent misrepresentation. 11.6 The rights to contribution provided in this section shall be in addition to and not in derogation of any other right to contribution which the Indemnified Parties may have by statute or otherwise at law provided that Section 11.4 shall apply, mutatis mutandis, in respect of that other right. 11.7 The obligations under this Section 11 shall apply from the date of the Engagement Letters between the Lead Underwriters and the Corporation, and shall apply whether or not the transactions contemplated by this Agreement are completed and shall survive the completion of the transactions contemplated under this Agreement and the termination of this Agreement.
Appears in 2 contracts
Samples: Underwriting Agreement (Great Basin Gold LTD), Underwriting Agreement (Great Basin Gold LTD)
Indemnity by the Corporation. 11.1 The In the event of any registration under the Securities Act of any Restricted Shares pursuant to this Section 3 or otherwise, or registration or qualification of any Restricted Shares pursuant to Section 3.7(d) hereof, the Corporation shall protect, shall:
(i) indemnify and hold harmless any seller of such shares (the "Seller"), any underwriter, any officer, director, employee or agent of any Seller or underwriter, and indemnify each of the Underwriters, each other person (a “Control Person”)or entity, if any, who controls any of the Underwriters Seller or underwriter within the meaning of Section 15 of the U.S. Securities Act and their respective affiliates and their and each of their Control Persons and affiliatesAct, respective directors, officers, employees, shareholders and agents (as applicable) (collectively, the “Indemnified Parties” and individually an “Indemnified Party”) from and against all any losses, claims, damages, damages or liabilities, costs and expensesjoint or several ("Claims"), includingto which each such indemnified party may become subject, without limitationunder the Securities Act or otherwise, all amounts paid insofar as any Claims (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the registration statement or preliminary prospectus (if used prior to settle actions, satisfy judgments the effective date of the registration statement) or awards summary or final prospectus or any amendment or supplement thereto (if used during the period the Corporation is required to enforce this indemnity and all reasonable legal fees and expenses on keep the registration statement current) or any document filed under a solicitor and own client basis state securities or blue sky law (collectively, a “Claim”) caused by or arising directly or indirectly by reason of the transactions contemplated in, or the services provided under, this Agreement including, without limitation:
(a) any breach by the Corporation of, or default under, any covenant or agreement of the Corporation in this Agreement which has not been waived by the Underwriters under this Agreement or any inaccuracy of any representation or warranty of the Corporation under this Agreement or any other document to be delivered pursuant hereto or the failure of the Corporation to comply with any of its obligations hereunder or thereunder;
(b) any information or statement (except any information or statement relating to the Underwriters, or any of them, provided by the Underwriters) contained in any of the Canadian Prospectus, the U.S. Prospectus, the "Registration Statement, the Warrant Registration Statement, the Free Writing Prospectus or the Issuer Free Writing Prospectus (including any documents incorporated by reference thereinDocuments") or insofar as any Supplemental Material Claims (or additional actions in respect thereof) arise out of or ancillary material, information, evidence, return, report, application statement or document (collectively are based upon the “Additional Materials”) being or being alleged to be a misrepresentation or untrue or any omission or alleged omission to state in those documents any Registration Document a material fact (except facts relating to the Underwriters, or any of them, provided by the Underwriters) required to be stated in those documents therein or necessary to make any of the statements made therein not misleading or insofar as any Claims (or actions in light respect thereof) arise out of the circumstances in which they were made;
(c) any order made or any inquiry, investigation or proceeding instituted, threatened or announced by any court, securities regulatory authority or stock exchange or by any other competent authority, are based upon any untrue statementviolation by the Corporation of any Federal, omission state or misrepresentation common law rule or alleged untrue statement, omission or misrepresentation (except a statement, omission or misrepresentation relating regulation applicable to the Underwriters, or any of them, provided by the Underwriters) contained in any of the Canadian Prospectus, the U.S. Prospectus, the Registration Statement, the Warrant Registration Statement, the Free Writing Prospectus or the Issuer Free Writing Prospectus (or any document incorporated by reference therein) or any Supplemental Material or any Additional Materials which operates to prevent or restrict the trading in or the sale or distribution of the Units, Additional Common Shares, Additional Warrants and Warrant Shares;
(d) the Corporation not complying with any requirement of any Applicable Securities Laws or U.S. securities laws relating to the Offering and any regulatory requirements (including any filing or notice in connection in any U.S. federal or state securities laws or rules of any stock exchange or quotation system);
(e) any order made by any regulatory authority that trading in or distribution of any of the Corporation’s securities is to cease or be suspended, including an order prohibiting the trade or distribution of any of the securities referred to herein;
(f) the failure or inability of the Corporation to allot, issue and deliver any or all of the certificates representing the Units and Warrant Shares and, if applicable, the Additional Common Shares and/or Additional Warrants in a form and denomination satisfactory to the Underwriters at the time and place as the Underwriters may reasonably require for the completion of the transaction referred to herein; and
(gii) a determination made by any competent authority setting aside the trade or distribution of any of the securities referred to herein, other than as a result of a breach by any of the Underwriters of its covenants herein; and shall reimburse the Indemnified Parties each indemnified party for all reasonable costs, charges and expenses, as incurred, which any of them may pay legal or incur other expenses reasonably incurred by it in connection with investigating or disputing defending any Claim or action related thereto action, including the fees and expenses of legal counsel on a solicitor and own client basis and including reimbursement any amounts paid to the Underwriters for the time spent by the Indemnified Parties in connection with any Claim payable at the normal per diem rates of such Indemnified Parties. This indemnity shall be in addition to any liability which the Corporation may otherwise have.
11.2 If any Claim contemplated by this Section 11 is asserted against any of the Indemnified Parties, or if any potential Claim contemplated by this Section 11 comes to the knowledge settlement of any of litigation, commenced or threatened, if such settlement is effected with the Indemnified Parties, the Indemnified Party concerned shall notify in writing the Corporation as soon as reasonably practicable, of the nature of the Claim (provided that any failure to so notify in respect of any potential Claim shall not affect the liability written consent of the Corporation under this Section 11(which consent shall not unreasonably be withheld); provided, except however, that the Corporation shall not be liable to a particular indemnified party to the extent that such delay prejudices the Corporation’s ability to contest such Claim). The Corporation shall, subject any Claim or expense arises out of or is based upon any untrue statement or omission made in any Registration Document in reliance upon and in conformity with written information furnished to the following, be entitled (but not required) to assume the defence Corporation by or on behalf of such indemnified party through an instrument duly executed by such indemnified party specifically stating that it is for use in the Indemnified Party of any suit brought to enforce the Claim; provided that the defence shall be through legal counsel selected by the Corporation and acceptable to the Indemnified Party, acting reasonably, and no admission of liability shall be made by the Corporation without the prior written consent preparation of the Indemnified Party. An Indemnified Party shall have the right to employ separate counsel in any such suit and participate in its defence but the fees and expenses of that counsel shall be at the expense of the Indemnified Parties unless:
(a) the Corporation fails to assume the defence of the suit on behalf of the Indemnified Party within a reasonable time of receiving notice of the suit;
(b) the employment of that counsel has been authorized in writing by the Corporation; or
(c) the named parties to the suit (including any added or third parties) including the Corporation and the Indemnified Party have been advised in writing by outside counsel that representation of the Indemnified Party by counsel for the Corporation is inappropriate as a result of the potential or actual conflicting interests of those represented; (in each of the cases set out in Subsections 11.2(a), (b) or (c), the Corporation shall not have the right to assume the defence of the suit on behalf of the Indemnified Party, but the Corporation shall be liable to pay the reasonable fees and expenses of separate counsel for all Indemnified Parties and, in addition, of local counsel in each applicable jurisdiction on a solicitor and own client basis). Notwithstanding the foregoing, no settlement may be made by an Indemnified Party without the prior written consent of the Corporation, which consent shall not be unreasonably withheldRegistration Document.
11.3 The Corporation hereby acknowledges and agrees that, with respect to this Section 11, the Underwriters are contracting on their own behalf and as agents for their Control Persons, affiliates, directors, officers, employees, shareholders and agents and each of their Control Persons and affiliates’ respective directors, officers, employees, shareholders, and agents (collectively, the “Beneficiaries”). In this regard, each of the Underwriters shall act as trustee for the Beneficiaries of the covenants of the Corporation under this Section 11 with respect to the Beneficiaries and accept these trusts and will hold and enforce those covenants on behalf of the Beneficiaries.
11.4 In order to provide for just and equitable contribution in circumstances in which an indemnity provided in Section 11 would otherwise be available in accordance with its terms but is, for any reason not solely attributable to any one or more of the Indemnified Parties, held to be unavailable to or unenforceable by the Indemnified Parties or enforceable otherwise than in accordance with its terms, the Underwriters and the Corporation, as the case may be, shall contribute to the aggregate of all Claims (other than losses of profits in connection with the distribution of the Units and the Additional Common Shares and/or Additional Warrants) of the nature contemplated in Section 11 and suffered or incurred by the Indemnified Parties in proportions reflective of the relative benefits received by the Corporation and any Indemnified Party, as well as their relative fault and any other relevant equitable considerations, as determined by a court of competent jurisdiction; provided that the Underwriters shall not in any event be liable to contribute, in the aggregate, any amount in excess of the Underwriters’ Fee or any portion actually received.
11.5 No party guilty of gross negligence, wilful misconduct, fraud or fraudulent misrepresentation shall be entitled to claim indemnification under this Section 11 or contribution under Section 11.4 from any person who is not guilty of such gross negligence, wilful misconduct, fraud or fraudulent misrepresentation.
11.6 The rights to contribution provided in this section shall be in addition to and not in derogation of any other right to contribution which the Indemnified Parties may have by statute or otherwise at law provided that Section 11.4 shall apply, mutatis mutandis, in respect of that other right.
11.7 The obligations under this Section 11 shall apply from the date of the Engagement Letters between the Lead Underwriters and the Corporation, and shall apply whether or not the transactions contemplated by this Agreement are completed and shall survive the completion of the transactions contemplated under this Agreement and the termination of this Agreement.
Appears in 1 contract
Indemnity by the Corporation. 11.1 10.1 The Corporation shall protectindemnify and save harmless the Agents, hold harmless and indemnify each of the Underwriters, each person (a “Control Person”), if any, who controls any of the Underwriters within the meaning of Section 15 of the U.S. Securities Act and their respective affiliates and their and each of their Control Persons and affiliates, respective directors, officers, employees, partners, agents, and shareholders and agents (as applicable) (collectively, the “Indemnified Parties” and individually individually, an “Indemnified Party”) from and against any and all losses, claims, actions, suits, proceedings, damages, liabilitiesliabilities or expenses of whatsoever nature or kind (excluding loss of profits), costs and expenses, including, without limitation, all amounts including the aggregate amount paid to settle in reasonable settlement of any actions, satisfy judgments suits, proceedings, investigations or awards claims and the reasonable fees, disbursements and taxes of their counsel in connection with any action, suit, proceeding, investigation or to enforce claim that may be made or threatened against any Indemnified Party or in enforcing this indemnity and all reasonable legal fees and expenses on a solicitor and own client basis (collectively, a the “ClaimClaims”), which an Indemnified Party may incur or become subject to or otherwise involved in (in any capacity) insofar as the Claims relate to, are caused by by, result from, arise out of or arising are based upon, directly or indirectly indirectly, by reason of the transactions contemplated in, or the services provided under, this Agreement including, without limitation:
(a) any breach by the Corporation of, whether performed before or default under, any covenant or agreement of the Corporation in this Agreement which has not been waived by the Underwriters under this Agreement or any inaccuracy of any representation or warranty of the Corporation under this Agreement or any other document to be delivered pursuant hereto or the failure of the Corporation to comply with any of its obligations hereunder or thereunder;
(b) any information or statement (except any information or statement relating to the Underwriters, or any of them, provided by the Underwriters) contained in any of the Canadian Prospectus, the U.S. Prospectus, the Registration Statement, the Warrant Registration Statement, the Free Writing Prospectus or the Issuer Free Writing Prospectus (including any documents incorporated by reference therein) or any Supplemental Material or additional or ancillary material, information, evidence, return, report, application statement or document (collectively the “Additional Materials”) being or being alleged to be a misrepresentation or untrue or any omission or alleged omission to state in those documents any material fact (except facts relating to the Underwriters, or any of them, provided by the Underwriters) required to be stated in those documents or necessary to make any of the statements therein not misleading in light of the circumstances in which they were made;
(c) any order made or any inquiry, investigation or proceeding instituted, threatened or announced by any court, securities regulatory authority or stock exchange or by any other competent authority, based upon any untrue statement, omission or misrepresentation or alleged untrue statement, omission or misrepresentation (except a statement, omission or misrepresentation relating to the Underwriters, or any of them, provided by the Underwriters) contained in any of the Canadian Prospectus, the U.S. Prospectus, the Registration Statement, the Warrant Registration Statement, the Free Writing Prospectus or the Issuer Free Writing Prospectus (or any document incorporated by reference therein) or any Supplemental Material or any Additional Materials which operates to prevent or restrict the trading in or the sale or distribution of the Units, Additional Common Shares, Additional Warrants and Warrant Shares;
(d) the Corporation not complying with any requirement of any Applicable Securities Laws or U.S. securities laws relating to the Offering and any regulatory requirements (including any filing or notice in connection in any U.S. federal or state securities laws or rules of any stock exchange or quotation system);
(e) any order made by any regulatory authority that trading in or distribution of any of after the Corporation’s securities is execution of this Agreement, and to cease reimburse each Indemnified Party forthwith, upon demand, for any legal or be suspended, including an order prohibiting the trade or distribution of any of the securities referred to herein;
(f) the failure or inability of the Corporation to allot, issue and deliver any or all of the certificates representing the Units and Warrant Shares and, if applicable, the Additional Common Shares and/or Additional Warrants in a form and denomination satisfactory to the Underwriters at the time and place as the Underwriters may other expenses reasonably require for the completion of the transaction referred to herein; and
(g) a determination made incurred by any competent authority setting aside the trade or distribution of any of the securities referred to herein, other than as a result of a breach by any of the Underwriters of its covenants herein; and shall reimburse the such Indemnified Parties for all reasonable costs, charges and expenses, as incurred, which any of them may pay or incur in connection with investigating or disputing any Claim or action related thereto including the fees and expenses of legal counsel on a solicitor and own client basis and including reimbursement paid to the Underwriters for the time spent by the Indemnified Parties Party in connection with any Claim payable at the normal per diem rates of such Indemnified Parties. Claim.
10.2 This indemnity shall not be in addition available to any liability Indemnified Party in relation to any losses, expenses, claims, actions, damages or liabilities incurred by the Corporation are determined by a court of competent jurisdiction in a final judgment that has become non-appealable to have resulted primarily from the Indemnified Party’s gross negligence, fraud or wilful misconduct.
10.3 In the event and to the extent that a court of competent jurisdiction in a final judgment that has become non-appealable determines that an Indemnified Party was grossly negligent, fraudulent or guilty of wilful misconduct in connection with a Claim in respect of which the Corporation may otherwise havehas advanced funds to the Indemnified Party pursuant to this indemnity, such Indemnified Party will reimburse such funds to the Corporation and thereafter this indemnity will not apply to such Indemnified Party in respect of such Claim. The Corporation agrees to waive any right the Corporation might have of first requiring the Indemnified Party to proceed against or enforce any other right, power, remedy or security or claim payment from any other person before claiming under this indemnity.
11.2 10.4 If any a Claim contemplated by this Section 11 is asserted brought against any an Indemnified Party or an Indemnified Party has received notice of the Indemnified Parties, or if any potential Claim contemplated by this Section 11 comes to the knowledge commencement of any investigation in respect of which indemnity may be sought against the Indemnified PartiesCorporation, the Indemnified Party concerned shall notify in writing will give the Corporation as soon as reasonably practicable, of the nature of the Claim (provided that any failure to so notify in respect prompt written notice of any potential such Claim shall not affect of which the liability of Indemnified Party has knowledge and the Corporation under this Section 11, except to will undertake the extent that such delay prejudices the Corporation’s ability to contest such Claim). The Corporation shall, subject to the following, be entitled (but not required) to assume the investigation and defence thereof on behalf of the Indemnified Party Party, including the prompt employment of any suit brought to enforce the Claim; provided that the defence shall be through legal counsel selected by the Corporation and acceptable to the Indemnified Party, acting reasonably, Parties affected and no the payment of all expenses. Failure by the Indemnified Party to so notify will not relieve the Corporation of its obligation of indemnification hereunder unless (and only to the extent that) such failure results in forfeiture by the Corporation of substantive rights or defences.
10.5 No admission of liability shall and no settlement, compromise or termination of any Claim will be made by the Corporation without the prior written Corporation’s consent and the consent of the Indemnified Parties affected, such consents not to be unreasonably withheld; provided, however, that no consent of an Indemnified Party will be required if the Corporation has acknowledged in writing that the Indemnified Parties are entitled to be indemnified in respect of such Claim and such settlement, compromise or termination includes an unconditional release of each Indemnified Party from any liability arising out of such Claim without any admission of negligence, misconduct, liability or responsibility by or on behalf of any Indemnified Party. An Notwithstanding that the Corporation will undertake the investigation and defence of any Claim, an Indemnified Party shall will have the right to employ separate counsel in with respect to any such suit Claim and participate in its the defence thereof, but the fees and expenses of that such counsel shall will be at the expense of the Indemnified Parties Party unless:
(a) the Corporation fails to assume the defence of the suit on behalf of the Indemnified Party within a reasonable time of receiving notice of the suit;
(b) the employment of that such counsel has been authorized in writing by the Corporation; or;
(b) the Corporation has not assumed the defence of the action within a reasonable period of time after receiving notice of the claim;
(c) the named parties to the suit (including any added or third parties) including such claim include both the Corporation and the Indemnified Party and the Indemnified Party will have been advised by counsel to the Indemnified Party that there may be a conflict of interest between the Corporation and the Indemnified Party; or
(d) there are one or more defences available to the Indemnified Party which are different from or in writing by outside addition to those available to the Corporation; in which case such fees and expenses of such counsel to the Indemnified Party will be for the Corporation’s account, provided that representation the Corporation shall not be responsible for the fees or expenses of more than one legal firm in any single jurisdiction for all of the Indemnified Parties. The rights accorded to the Indemnified Parties hereunder will be in addition to any rights an Indemnified Party by counsel may have at common law or otherwise.
10.6 If for any reason the foregoing indemnification is unavailable (other than in accordance with the terms hereof) to the Indemnified Parties (or any of them) or is insufficient to hold them harmless, the Corporation is inappropriate will contribute to the amount paid or payable by the Indemnified Parties as a result of the potential or actual conflicting interests of those represented; (such Claims in each of the cases set out in Subsections 11.2(a), (b) or (c), the Corporation shall such proportion as is appropriate to reflect not have the right to assume the defence of the suit on behalf of the Indemnified Party, but the Corporation shall be liable to pay the reasonable fees and expenses of separate counsel for all Indemnified Parties and, in addition, of local counsel in each applicable jurisdiction on a solicitor and own client basis). Notwithstanding the foregoing, no settlement may be made by an Indemnified Party without the prior written consent of the Corporation, which consent shall not be unreasonably withheld.
11.3 The Corporation hereby acknowledges and agrees that, with respect to this Section 11, the Underwriters are contracting on their own behalf and as agents for their Control Persons, affiliates, directors, officers, employees, shareholders and agents and each of their Control Persons and affiliates’ respective directors, officers, employees, shareholders, and agents (collectively, the “Beneficiaries”). In this regard, each of the Underwriters shall act as trustee for the Beneficiaries of the covenants of the Corporation under this Section 11 with respect to the Beneficiaries and accept these trusts and will hold and enforce those covenants on behalf of the Beneficiaries.
11.4 In order to provide for just and equitable contribution in circumstances in which an indemnity provided in Section 11 would otherwise be available in accordance with its terms but is, for any reason not solely attributable to any one or more of the Indemnified Parties, held to be unavailable to or unenforceable by the Indemnified Parties or enforceable otherwise than in accordance with its terms, the Underwriters and the Corporation, as the case may be, shall contribute to the aggregate of all Claims (other than losses of profits in connection with the distribution of the Units and the Additional Common Shares and/or Additional Warrants) of the nature contemplated in Section 11 and suffered or incurred by the Indemnified Parties in proportions reflective of only the relative benefits received by the Corporation or the Corporation’s shareholders on the one hand and any the Indemnified PartyParties on the other, as well as their but also the relative fault of the parties and any other relevant equitable considerationsconsiderations which may be relevant. Notwithstanding the foregoing, as determined by a court of competent jurisdiction; provided that the Underwriters shall not Corporation will in any event be liable contribute to contribute, in the aggregate, amount paid or payable by the Indemnified Parties as a result of such Claim any amount in excess of the Underwriters’ Fee or fees actually received by any portion actually receivedIndemnified Parties hereunder.
11.5 No party guilty 10.7 The Corporation hereby constitutes the Lead Agents as trustee for each of gross negligence, wilful misconduct, fraud or fraudulent misrepresentation shall be entitled to claim indemnification the other Indemnified Parties of the Corporation’s covenants under this Section 11 or contribution under Section 11.4 from any person who is not guilty indemnity with respect to such persons and the Lead Agents agrees to accept such trust and to hold and enforce such covenants on behalf of such gross negligence, wilful misconduct, fraud or fraudulent misrepresentationpersons.
11.6 10.8 The rights to contribution provided in this section Section 10 shall be in addition to and not in derogation of any other right to contribution which the Indemnified Parties may have by statute or otherwise at law provided that Section 11.4 shall apply, mutatis mutandis, in respect of that other rightlaw.
11.7 10.9 The obligations under this Section 11 10 shall apply from the date of the Engagement Letters Letter between the Lead Underwriters Agents and the Corporation, and shall apply whether or not the transactions contemplated by this Agreement are completed and shall survive the completion of the transactions contemplated under this Agreement and the termination of this Agreement.
Appears in 1 contract
Samples: Agency Agreement (Veris Gold Corp.)
Indemnity by the Corporation. 11.1 The To the extent permitted by law, the Corporation shall agrees to protect, hold harmless and indemnify each of the Underwriters, Underwriters and each person (a “Control Person”), if any, who controls any and every one of the Underwriters within the meaning of Section 15 of the U.S. Securities Act and their respective affiliates and their and each of their Control Indemnified Persons and affiliates, respective directors, officers, employees, shareholders and agents (as applicable) (collectively, the “Indemnified Parties” and individually an “Indemnified Party”) from and against all lossesLosses, claimswhich any such Underwriter or any of them may be subject to or suffer or incur, damageswhether under the provisions of any statute or otherwise, liabilities, costs and expenses, including, without limitation, all amounts paid to settle actions, satisfy judgments which are caused or awards or to enforce this indemnity and all reasonable legal fees and expenses on a solicitor and own client basis (collectively, a “Claim”) caused incurred by or arising arise directly or indirectly by reason of the transactions contemplated in, or the services provided under, this Agreement including, without limitationin consequence of:
(ai) any breach information or statement (except any information or statement furnished by or relating solely to the Corporation of, Underwriters or default under, any covenant of them or agreement the Fund) contained in the Prospectus or in any certificate of the Corporation in delivered under this Agreement which has not been waived by at the Underwriters time and in light of the circumstances under which it was made contains or is alleged to contain a misrepresentation;
(ii) any omission or alleged omission to state in the Prospectus or any certificate of the Corporation delivered under this Agreement or pursuant to this Agreement any inaccuracy material fact or information (except facts or information furnished by or relating solely to the Underwriters or any of them or the Fund), required to be stated in such document or necessary to make any statement in such document not misleading in light of the circumstances under which it was made;
(iii) any order made or enquiry, investigation or proceedings commenced or threatened by any securities commission or other competent authority based upon any untrue statement or omission, or alleged untrue statement or alleged omission or any misrepresentation or alleged misrepresentation (except a statement or omission or alleged statement or omission furnished by or relating solely to the Underwriters or any of them or the Fund) in the Prospectus or based upon any failure to comply with Canadian Securities Laws (other than any failure or alleged failure to comply by the Underwriters or the Fund), preventing or restricting the trading in or the sale or distribution of the Purchased Securities in any of the Qualifying Jurisdictions;
(iv) any breach of a representation or warranty of made in this Agreement by the Corporation under this Agreement or any other document to be delivered pursuant hereto or the failure of the Corporation to comply with any of its obligations hereunder or thereunder;hereunder; or
(b) any information or statement (except any information or statement relating to the Underwriters, or any of them, provided by the Underwriters) contained in any of the Canadian Prospectus, the U.S. Prospectus, the Registration Statement, the Warrant Registration Statement, the Free Writing Prospectus or the Issuer Free Writing Prospectus (including any documents incorporated by reference therein) or any Supplemental Material or additional or ancillary material, information, evidence, return, report, application statement or document (collectively the “Additional Materials”) being or being alleged to be a misrepresentation or untrue or any omission or alleged omission to state in those documents any material fact (except facts relating to the Underwriters, or any of them, provided by the Underwriters) required to be stated in those documents or necessary to make any of the statements therein not misleading in light of the circumstances in which they were made;
(c) any order made or any inquiry, investigation or proceeding instituted, threatened or announced by any court, securities regulatory authority or stock exchange or by any other competent authority, based upon any untrue statement, omission or misrepresentation or alleged untrue statement, omission or misrepresentation (except a statement, omission or misrepresentation relating to the Underwriters, or any of them, provided by the Underwriters) contained in any of the Canadian Prospectus, the U.S. Prospectus, the Registration Statement, the Warrant Registration Statement, the Free Writing Prospectus or the Issuer Free Writing Prospectus (or any document incorporated by reference therein) or any Supplemental Material or any Additional Materials which operates to prevent or restrict the trading in or the sale or distribution of the Units, Additional Common Shares, Additional Warrants and Warrant Shares;
(dv) the Corporation not complying with any requirement of any Applicable Canadian Securities Laws or U.S. securities laws relating to the Offering and any regulatory requirements (including any filing or notice in connection in any U.S. federal or state securities laws or rules of any stock exchange or quotation system);
(e) any order made by any regulatory authority that trading in or distribution of any of the Corporation’s securities is to cease or be suspended, including an order prohibiting the trade or distribution of any of the securities referred to herein;
(f) the failure or inability of the Corporation to allot, issue and deliver any or all of the certificates representing the Units and Warrant Shares and, if applicable, the Additional Common Shares and/or Additional Warrants in a form and denomination satisfactory to the Underwriters at the time and place as the Underwriters may reasonably require for the completion of the transaction referred to herein; and
(g) a determination made by any competent authority setting aside the trade or distribution of any of the securities referred to herein, other than as a result of a breach by any of the Underwriters of its covenants herein; and shall reimburse the Indemnified Parties for all reasonable costs, charges and expenses, as incurred, which any of them may pay or incur in connection with investigating or disputing any Claim or action related thereto including the fees and expenses of legal counsel on a solicitor and own client basis and including reimbursement paid to the Underwriters for the time spent by the Indemnified Parties in connection with any Claim payable at the normal per diem rates of such Indemnified Parties. This indemnity shall be in addition to any liability which the Corporation may otherwise haveLaws.
11.2 If any Claim contemplated by this Section 11 is asserted against any of the Indemnified Parties, or if any potential Claim contemplated by this Section 11 comes to the knowledge of any of the Indemnified Parties, the Indemnified Party concerned shall notify in writing the Corporation as soon as reasonably practicable, of the nature of the Claim (provided that any failure to so notify in respect of any potential Claim shall not affect the liability of the Corporation under this Section 11, except to the extent that such delay prejudices the Corporation’s ability to contest such Claim). The Corporation shall, subject to the following, be entitled (but not required) to assume the defence on behalf of the Indemnified Party of any suit brought to enforce the Claim; provided that the defence shall be through legal counsel selected by the Corporation and acceptable to the Indemnified Party, acting reasonably, and no admission of liability shall be made by the Corporation without the prior written consent of the Indemnified Party. An Indemnified Party shall have the right to employ separate counsel in any such suit and participate in its defence but the fees and expenses of that counsel shall be at the expense of the Indemnified Parties unless:
(a) the Corporation fails to assume the defence of the suit on behalf of the Indemnified Party within a reasonable time of receiving notice of the suit;
(b) the employment of that counsel has been authorized in writing by the Corporation; or
(c) the named parties to the suit (including any added or third parties) including the Corporation and the Indemnified Party have been advised in writing by outside counsel that representation of the Indemnified Party by counsel for the Corporation is inappropriate as a result of the potential or actual conflicting interests of those represented; (in each of the cases set out in Subsections 11.2(a), (b) or (c), the Corporation shall not have the right to assume the defence of the suit on behalf of the Indemnified Party, but the Corporation shall be liable to pay the reasonable fees and expenses of separate counsel for all Indemnified Parties and, in addition, of local counsel in each applicable jurisdiction on a solicitor and own client basis). Notwithstanding the foregoing, no settlement may be made by an Indemnified Party without the prior written consent of the Corporation, which consent shall not be unreasonably withheld.
11.3 The Corporation hereby acknowledges and agrees that, with respect to this Section 11, the Underwriters are contracting on their own behalf and as agents for their Control Persons, affiliates, directors, officers, employees, shareholders and agents and each of their Control Persons and affiliates’ respective directors, officers, employees, shareholders, and agents (collectively, the “Beneficiaries”). In this regard, each of the Underwriters shall act as trustee for the Beneficiaries of the covenants of the Corporation under this Section 11 with respect to the Beneficiaries and accept these trusts and will hold and enforce those covenants on behalf of the Beneficiaries.
11.4 In order to provide for just and equitable contribution in circumstances in which an indemnity provided in Section 11 would otherwise be available in accordance with its terms but is, for any reason not solely attributable to any one or more of the Indemnified Parties, held to be unavailable to or unenforceable by the Indemnified Parties or enforceable otherwise than in accordance with its terms, the Underwriters and the Corporation, as the case may be, shall contribute to the aggregate of all Claims (other than losses of profits in connection with the distribution of the Units and the Additional Common Shares and/or Additional Warrants) of the nature contemplated in Section 11 and suffered or incurred by the Indemnified Parties in proportions reflective of the relative benefits received by the Corporation and any Indemnified Party, as well as their relative fault and any other relevant equitable considerations, as determined by a court of competent jurisdiction; provided that the Underwriters shall not in any event be liable to contribute, in the aggregate, any amount in excess of the Underwriters’ Fee or any portion actually received.
11.5 No party guilty of gross negligence, wilful misconduct, fraud or fraudulent misrepresentation shall be entitled to claim indemnification under this Section 11 or contribution under Section 11.4 from any person who is not guilty of such gross negligence, wilful misconduct, fraud or fraudulent misrepresentation.
11.6 The rights to contribution provided in this section shall be in addition to and not in derogation of any other right to contribution which the Indemnified Parties may have by statute or otherwise at law provided that Section 11.4 shall apply, mutatis mutandis, in respect of that other right.
11.7 The obligations under this Section 11 shall apply from the date of the Engagement Letters between the Lead Underwriters and the Corporation, and shall apply whether or not the transactions contemplated by this Agreement are completed and shall survive the completion of the transactions contemplated under this Agreement and the termination of this Agreement.
Appears in 1 contract
Indemnity by the Corporation. 11.1 The Corporation shall protectindemnify and save harmless the Agents, hold harmless and indemnify each of the Underwriters, each person (a “Control Person”), if any, who controls any of the Underwriters within the meaning of Section 15 of the U.S. Securities Act and their respective affiliates and their and each of their Control Persons and affiliates, respective directors, officers, employees, partners, agents, and shareholders and agents (as applicable) (collectively, the “Indemnified Parties” and individually individually, an “Indemnified Party”) from and against any and all losses, claims, actions, suits, proceedings, damages, liabilitiesliabilities or expenses of whatsoever nature or kind (excluding loss of profits), costs and expenses, including, without limitation, all amounts including the aggregate amount paid to settle in reasonable settlement of any actions, satisfy judgments suits, proceedings, investigations or awards claims and the reasonable fees, disbursements and taxes of their counsel in connection with any action, suit, proceeding, investigation or to enforce claim that may be made or threatened against any Indemnified Party or in enforcing this indemnity and all reasonable legal fees and expenses on a solicitor and own client basis (collectively, a the “ClaimClaims”), which an Indemnified Party may incur or become subject to or otherwise involved in (in any capacity) insofar as the Claims relate to, are caused by by, result from, arise out of or arising are based upon, directly or indirectly indirectly, by reason of the transactions contemplated in, or the services provided under, this Agreement including, without limitation:
(a) any breach by the Corporation of, whether performed before or default under, any covenant or agreement of the Corporation in this Agreement which has not been waived by the Underwriters under this Agreement or any inaccuracy of any representation or warranty of the Corporation under this Agreement or any other document to be delivered pursuant hereto or the failure of the Corporation to comply with any of its obligations hereunder or thereunder;
(b) any information or statement (except any information or statement relating to the Underwriters, or any of them, provided by the Underwriters) contained in any of the Canadian Prospectus, the U.S. Prospectus, the Registration Statement, the Warrant Registration Statement, the Free Writing Prospectus or the Issuer Free Writing Prospectus (including any documents incorporated by reference therein) or any Supplemental Material or additional or ancillary material, information, evidence, return, report, application statement or document (collectively the “Additional Materials”) being or being alleged to be a misrepresentation or untrue or any omission or alleged omission to state in those documents any material fact (except facts relating to the Underwriters, or any of them, provided by the Underwriters) required to be stated in those documents or necessary to make any of the statements therein not misleading in light of the circumstances in which they were made;
(c) any order made or any inquiry, investigation or proceeding instituted, threatened or announced by any court, securities regulatory authority or stock exchange or by any other competent authority, based upon any untrue statement, omission or misrepresentation or alleged untrue statement, omission or misrepresentation (except a statement, omission or misrepresentation relating to the Underwriters, or any of them, provided by the Underwriters) contained in any of the Canadian Prospectus, the U.S. Prospectus, the Registration Statement, the Warrant Registration Statement, the Free Writing Prospectus or the Issuer Free Writing Prospectus (or any document incorporated by reference therein) or any Supplemental Material or any Additional Materials which operates to prevent or restrict the trading in or the sale or distribution of the Units, Additional Common Shares, Additional Warrants and Warrant Shares;
(d) the Corporation not complying with any requirement of any Applicable Securities Laws or U.S. securities laws relating to the Offering and any regulatory requirements (including any filing or notice in connection in any U.S. federal or state securities laws or rules of any stock exchange or quotation system);
(e) any order made by any regulatory authority that trading in or distribution of any of after the Corporation’s securities is execution of this Agreement, and to cease reimburse each Indemnified Party forthwith, upon demand, for any legal or be suspended, including an order prohibiting the trade or distribution of any of the securities referred to herein;
(f) the failure or inability of the Corporation to allot, issue and deliver any or all of the certificates representing the Units and Warrant Shares and, if applicable, the Additional Common Shares and/or Additional Warrants in a form and denomination satisfactory to the Underwriters at the time and place as the Underwriters may other expenses reasonably require for the completion of the transaction referred to herein; and
(g) a determination made incurred by any competent authority setting aside the trade or distribution of any of the securities referred to herein, other than as a result of a breach by any of the Underwriters of its covenants herein; and shall reimburse the such Indemnified Parties for all reasonable costs, charges and expenses, as incurred, which any of them may pay or incur in connection with investigating or disputing any Claim or action related thereto including the fees and expenses of legal counsel on a solicitor and own client basis and including reimbursement paid to the Underwriters for the time spent by the Indemnified Parties Party in connection with any Claim payable at the normal per diem rates of such Indemnified Parties. Claim.
11.2 This indemnity shall not be in addition available to any liability Indemnified Party in relation to any losses, expenses, claims, actions, damages or liabilities incurred by the Corporation are determined by a court of competent jurisdiction in a final judgment that has become non-appealable to have resulted primarily from the Indemnified Party’s gross negligence, fraud or wilful misconduct.
11.3 In the event and to the extent that a court of competent jurisdiction in a final judgment that has become non-appealable determines that an Indemnified Party was grossly negligent, fraudulent or guilty of wilful misconduct in connection with a Claim in respect of which the Corporation may otherwise havehas advanced funds to the Indemnified Party pursuant to this indemnity, such Indemnified Party will reimburse such funds to the Corporation and thereafter this indemnity will not apply to such Indemnified Party in respect of such Claim. The Corporation agrees to waive any right the Corporation might have of first requiring the Indemnified Party to proceed against or enforce any other right, power, remedy or security or claim payment from any other person before claiming under this indemnity.
11.2 11.4 If any a Claim contemplated by this Section 11 is asserted brought against any an Indemnified Party or an Indemnified Party has received notice of the Indemnified Parties, or if any potential Claim contemplated by this Section 11 comes to the knowledge commencement of any investigation in respect of which indemnity may be sought against the Indemnified PartiesCorporation, the Indemnified Party concerned shall notify in writing will give the Corporation as soon as reasonably practicable, of the nature of the Claim (provided that any failure to so notify in respect prompt written notice of any potential such Claim shall not affect of which the liability of Indemnified Party has knowledge and the Corporation under this Section 11, except to will undertake the extent that such delay prejudices the Corporation’s ability to contest such Claim). The Corporation shall, subject to the following, be entitled (but not required) to assume the investigation and defence thereof on behalf of the Indemnified Party Party, including the prompt employment of any suit brought to enforce the Claim; provided that the defence shall be through legal counsel selected by the Corporation and acceptable to the Indemnified Party, acting reasonably, Parties affected and no the payment of all expenses. Failure by the Indemnified Party to so notify will not relieve the Corporation of its obligation of indemnification hereunder unless (and only to the extent that) such failure results in forfeiture by the Corporation of substantive rights or defences.
11.5 No admission of liability shall and no settlement, compromise or termination of any Claim will be made by the Corporation without the prior written Corporation’s consent and the consent of the Indemnified Parties affected, such consents not to be unreasonably withheld; provided, however, that no consent of an Indemnified Party will be required if the Corporation has acknowledged in writing that the Indemnified Parties are entitled to be indemnified in respect of such Claim and such settlement, compromise or termination includes an unconditional release of each Indemnified Party from any liability arising out of such Claim without any admission of negligence, misconduct, liability or responsibility by or on behalf of any Indemnified Party. An Notwithstanding that the Corporation will undertake the investigation and defence of any Claim, an Indemnified Party shall will have the right to employ separate counsel in with respect to any such suit Claim and participate in its the defence thereof, but the fees and expenses of that such counsel shall will be at the expense of the Indemnified Parties Party unless:
(a) the Corporation fails to assume the defence of the suit on behalf of the Indemnified Party within a reasonable time of receiving notice of the suit;
(b) the employment of that such counsel has been authorized in writing by the Corporation; or;
(b) the Corporation has not assumed the defence of the action within a reasonable period of time after receiving notice of the claim;
(c) the named parties to the suit (including any added or third parties) including such claim include both the Corporation and the Indemnified Party and the Indemnified Party will have been advised by counsel to the Indemnified Party that there may be a conflict of interest between the Corporation and the Indemnified Party; or
(d) there are one or more defences available to the Indemnified Party which are different from or in writing by outside addition to those available to the Corporation; in which case such fees and expenses of such counsel to the Indemnified Party will be for the Corporation’s account, provided that representation the Corporation shall not be responsible for the fees or expenses of more than one legal firm in any single jurisdiction for all of the Indemnified Parties. The rights accorded to the Indemnified Parties hereunder will be in addition to any rights an Indemnified Party by counsel may have at common law or otherwise.
11.6 If for any reason the foregoing indemnification is unavailable (other than in accordance with the terms hereof) to the Indemnified Parties (or any of them) or is insufficient to hold them harmless, the Corporation is inappropriate will contribute to the amount paid or payable by the Indemnified Parties as a result of the potential or actual conflicting interests of those represented; (such Claims in each of the cases set out in Subsections 11.2(a), (b) or (c), the Corporation shall such proportion as is appropriate to reflect not have the right to assume the defence of the suit on behalf of the Indemnified Party, but the Corporation shall be liable to pay the reasonable fees and expenses of separate counsel for all Indemnified Parties and, in addition, of local counsel in each applicable jurisdiction on a solicitor and own client basis). Notwithstanding the foregoing, no settlement may be made by an Indemnified Party without the prior written consent of the Corporation, which consent shall not be unreasonably withheld.
11.3 The Corporation hereby acknowledges and agrees that, with respect to this Section 11, the Underwriters are contracting on their own behalf and as agents for their Control Persons, affiliates, directors, officers, employees, shareholders and agents and each of their Control Persons and affiliates’ respective directors, officers, employees, shareholders, and agents (collectively, the “Beneficiaries”). In this regard, each of the Underwriters shall act as trustee for the Beneficiaries of the covenants of the Corporation under this Section 11 with respect to the Beneficiaries and accept these trusts and will hold and enforce those covenants on behalf of the Beneficiaries.
11.4 In order to provide for just and equitable contribution in circumstances in which an indemnity provided in Section 11 would otherwise be available in accordance with its terms but is, for any reason not solely attributable to any one or more of the Indemnified Parties, held to be unavailable to or unenforceable by the Indemnified Parties or enforceable otherwise than in accordance with its terms, the Underwriters and the Corporation, as the case may be, shall contribute to the aggregate of all Claims (other than losses of profits in connection with the distribution of the Units and the Additional Common Shares and/or Additional Warrants) of the nature contemplated in Section 11 and suffered or incurred by the Indemnified Parties in proportions reflective of only the relative benefits received by the Corporation or the Corporation’s shareholders on the one hand and any the Indemnified PartyParties on the other, as well as their but also the relative fault of the parties and any other relevant equitable considerationsconsiderations which may be relevant. Notwithstanding the foregoing, as determined by a court of competent jurisdiction; provided that the Underwriters shall not Corporation will in any event be liable contribute to contribute, in the aggregate, amount paid or payable by the Indemnified Parties as a result of such Claim any amount in excess of the Underwriters’ Fee or fees actually received by any portion actually receivedIndemnified Parties hereunder.
11.5 No party guilty 11.7 The Corporation hereby constitutes the Lead Agent as trustee for each of gross negligence, wilful misconduct, fraud or fraudulent misrepresentation shall be entitled to claim indemnification the other Indemnified Parties of the Corporation’s covenants under this Section 11 or contribution under Section 11.4 from any person who is not guilty indemnity with respect to such persons and the Lead Agent agrees to accept such trust and to hold and enforce such covenants on behalf of such gross negligence, wilful misconduct, fraud or fraudulent misrepresentationpersons.
11.6 11.8 The rights to contribution provided in this section Section 11 shall be in addition to and not in derogation of any other right to contribution which the Indemnified Parties may have by statute or otherwise at law provided that Section 11.4 shall apply, mutatis mutandis, in respect of that other rightlaw.
11.7 11.9 The obligations under this Section 11 shall apply from the date of the Engagement Letters between the Lead Underwriters and the CorporationLetter, and shall apply whether or not the transactions contemplated by this Agreement are completed and shall survive the completion of the transactions contemplated under this Agreement and the termination of this Agreement.
Appears in 1 contract
Samples: Agency Agreement (Veris Gold Corp.)
Indemnity by the Corporation. 11.1 The Corporation shall protect, agrees to indemnify and hold harmless and indemnify the Agents, each of the Underwriters, each person (a “Control Person”), if any, who controls any of the Underwriters within the meaning of Section 15 of the U.S. Securities Act their subsidiaries and their respective affiliates and their and each of their Control Persons and affiliates, respective directors, officers, employees, shareholders partners, agents, shareholders, each other person, if any, controlling an Agent, or any of its subsidiaries and agents (as applicable) affiliates (collectively, the “"Indemnified Parties” " and individually individually, an “"Indemnified Party”) "), from and against any and all losses, claimsexpenses, damagesclaims (including shareholder actions, derivative or otherwise), actions, damages and liabilities, costs joint or several, including without limitation the aggregate amount paid in reasonable settlement of any actions, suits, proceedings, investigations or claims and expensesthe reasonable fees and expenses of their counsel but not including any amount for lost profits (collectively, the "Losses") that may be suffered by, imposed upon or asserted against an Indemnified Party as a result of, in respect of, connected with or arising out of any action, suit, proceeding, investigation or claim that may be made or threatened by any person or in enforcing this indemnity (collectively the "Claims") insofar as the Claims relate to, are caused by, result from, arise out of or are based upon, directly or indirectly, this Agreement, the Offering or the Business Combination, including, without limitation, all amounts paid to settle actions, satisfy judgments or awards or to enforce this indemnity and all reasonable legal fees and expenses on as a solicitor and own client basis (collectively, a “Claim”) caused by or arising directly or indirectly by reason result of the transactions contemplated in, or the services provided under, this Agreement including, without limitation:
(a) any breach of a representation, warranty or covenant by the Corporation ofor Clarmin, or default under, any covenant or agreement of the Corporation in this Agreement which has not been waived by the Underwriters under this Agreement or any inaccuracy of any representation or warranty of the Corporation under this Agreement or any other document to be delivered pursuant hereto or the failure of the Corporation to comply with any of its obligations hereunder or thereunder;
(b) any information or statement (except any information or statement relating to the Underwriters, or any of them, provided by the Underwriters) contained in any of the Canadian Prospectus, the U.S. Prospectus, the Registration Statement, the Warrant Registration Statement, the Free Writing Prospectus or the Issuer Free Writing Prospectus (including any documents incorporated by reference therein) or any Supplemental Material or additional or ancillary material, information, evidence, return, report, application statement or document (collectively the “Additional Materials”) being or being alleged to be a misrepresentation or untrue or any omission or alleged omission to state in those documents any material fact (except facts relating to the Underwriters, or any of them, provided by the Underwriters) required to be stated in those documents or necessary to make any of the statements therein not misleading in light of the circumstances in which they were made;
(c) any order made or any inquiry, investigation or proceeding instituted, threatened or announced by any court, securities regulatory authority or stock exchange or by any other competent authority, based upon any untrue statement, omission or misrepresentation or alleged untrue statement, omission or misrepresentation (except a statement, omission or misrepresentation relating to the Underwriters, or any of them, provided by the Underwriters) contained in any of the Canadian Prospectus, the U.S. Prospectus, the Registration Statement, the Warrant Registration Statement, the Free Writing Prospectus or the Issuer Free Writing Prospectus (or any document incorporated by reference therein) or any Supplemental Material or any Additional Materials which operates to prevent or restrict the trading in or the sale or distribution of the Units, Additional Common Shares, Additional Warrants and Warrant Shares;
(d) the Corporation not complying with any requirement of any Applicable Securities Laws or U.S. securities laws relating to the Offering and any regulatory requirements (including any filing or notice in connection in any U.S. federal or state securities laws or rules of any stock exchange or quotation system);
(e) any order made by any regulatory authority that trading in or distribution of any of the Corporation’s securities is to cease or be suspended, including an order prohibiting the trade or distribution of any of the securities referred to herein;
(f) the failure or inability of the Corporation to allot, issue and deliver any or all of the certificates representing the Units and Warrant Shares and, if applicable, the Additional Common Shares and/or Additional Warrants in a form and denomination satisfactory to the Underwriters at the time and place as the Underwriters may reasonably require for the completion of the transaction referred to herein; and
(g) a determination made by any competent authority setting aside the trade or distribution of any of the securities referred to herein, other than as a result of a misrepresentation in the Presentation or any Clarmin Disclosure Documents or any breach by of Securities Laws or other applicable laws, whether arising from actions occurring before or after the execution of this Agreement. The Corporation agrees to 45 waive any right the Corporation may have of first requiring an Indemnified Party to proceed against or enforce any other right, power, remedy or security or claim payment from any other person before claiming under this indemnity. The Corporation also agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Corporation or Clarmin or any person asserting Claims on behalf of or in right of the Underwriters of its covenants herein; and shall reimburse the Indemnified Parties Corporation or Clarmin for all reasonable costs, charges and expenses, as incurred, which any of them may pay or incur in connection with investigating the Offering or disputing any Claim the Business Combination (whether arising from actions occurring before or action related thereto including after the fees and expenses execution of legal counsel on a solicitor and own client basis and including reimbursement paid to the Underwriters for the time spent by the Indemnified Parties in connection with any Claim payable at the normal per diem rates of such Indemnified Parties. This indemnity shall be in addition to any liability which the Corporation may otherwise have.
11.2 If any Claim contemplated by this Section 11 is asserted against any of the Indemnified Parties, or if any potential Claim contemplated by this Section 11 comes to the knowledge of any of the Indemnified Parties, the Indemnified Party concerned shall notify in writing the Corporation as soon as reasonably practicable, of the nature of the Claim (provided that any failure to so notify in respect of any potential Claim shall not affect the liability of the Corporation under this Section 11, except to the extent that such delay prejudices the Corporation’s ability to contest such ClaimAgreement). The Corporation shallwill not, subject to the following, be entitled (but not required) to assume the defence on behalf of the Indemnified Party of any suit brought to enforce the Claim; provided that the defence shall be through legal counsel selected by the Corporation and acceptable to the Indemnified Party, acting reasonably, and no admission of liability shall be made by the Corporation without the prior written consent of the Agents, settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any Claim in respect of which indemnification may be sought under this indemnity unless the Corporation has acknowledged in writing that the Indemnified Parties are entitled to be indemnified in respect of such Claim and such settlement, compromise, consent or termination includes an unconditional release of each Indemnified Party from any liabilities arising out of such Claim without any admission of negligence, misconduct, liability or responsibility by or on behalf of any Indemnified Party. An Promptly after receiving notice of a Claim against any Agent or any other Indemnified Party or receipt of notice of the commencement of any investigation which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from the Corporation, any Agent or any such other Indemnified Party will notify the Corporation in writing of the particulars thereof, provided that the omission to so notify the Corporation shall not relieve the Corporation of any liability which the Corporation may have to any Indemnified Party unless (and only to the extent that) such failure results in forfeiture by the Corporation of substantive rights or defences. The Corporation shall promptly after receipt of the notice to undertake, conduct and control, through counsel of their own choosing and at their own expense, the settlement or defense of the Claim. If the Corporation undertakes, conducts or controls the settlement or defense of the Claim, the relevant Indemnified Parties shall have the right to employ separate counsel in any such suit and participate in the settlement or defense of the Claim. The Corporation also agrees to reimburse any Agent for the time spent by its defence but personnel in connection with any Claim at their normal per diem rates. The Agents may retain counsel to separately represent the fees and expenses Agents in the defense of that counsel a Claim, which shall be at the Corporation's expense if (i) neither the Corporation promptly assumes the defense of the Indemnified Parties unless:
Claim after receiving actual notice of the Claim (aas set forth above), (ii) the Corporation fails agrees to assume the defence separate representation of the suit on behalf Agents, or (iii) the Agents are advised by counsel that there is an actual or potential conflict in the Corporation's and the Agents' respective interests or additional defenses are available to the Agents, which makes representation by the same counsel inappropriate. The foregoing indemnity shall not apply to the extent that a court of competent jurisdiction in a final judgment that has become non-appealable has determined that such Losses to which the Indemnified Party may be subject were caused primarily by the gross negligence, fraudulent act, intentional fault or willful misconduct of the Indemnified Party within or a reasonable time breach of receiving notice of the suit;
(b) the employment of that counsel has been authorized in writing this Agreement by the Corporation; or
Indemnified Party. If for any reason the foregoing indemnity is unavailable (cother than in accordance with the terms hereof) the named parties to the suit (including Agents or any added other Indemnified Party or third parties) including insufficient to hold the Agents or any other Indemnified Party harmless in respect of a Claim, the Corporation and shall contribute to the amount paid or payable by the Agents or the other Indemnified Party have been advised in writing by outside counsel that representation of the Indemnified Party by counsel for the Corporation is inappropriate as a result of such Claim in such proportion as is appropriate to reflect not only the potential or actual conflicting interests of those represented; (in each of the cases set out in Subsections 11.2(a), (b) or (c), relative benefits received by the Corporation shall not have on the right to assume one hand and the defence of the suit on behalf of the Indemnified Party, but the Corporation shall be liable to pay the reasonable fees and expenses of separate counsel for all Indemnified Parties and, in addition, of local counsel in each applicable jurisdiction on a solicitor and own client basis). Notwithstanding the foregoing, no settlement may be made by an Agents or any other Indemnified Party without on the prior written consent other hand but also the relative fault of the Corporation, which consent the Agents and any other Indemnified Party as well as any relevant equitable considerations; provided that the Corporation shall in any event contribute to the amount paid or payable by the Agents or any other Indemnified Party as a result of such Claim any excess of such amount over the amount of the fees received by the Agents under this Agreement. However, no party who has engaged in any fraud, fraudulent misrepresentation, wilful misconduct or gross negligence shall be entitled to claim contribution from any Person who has not be unreasonably withheld.
11.3 engaged in such fraud, fraudulent misrepresentation, wilful misconduct or gross negligence. The Corporation hereby acknowledges and agrees that, constitutes Stifel GMP as trustee for each of the other Indemnified Parties of the Corporation's covenants under this indemnity with respect to this Section 11, the Underwriters are contracting on their own behalf those persons and as agents for their Control Persons, affiliates, directors, officers, employees, shareholders Stifel GMP agrees to accept that trust and agents and each of their Control Persons and affiliates’ respective directors, officers, employees, shareholders, and agents (collectively, the “Beneficiaries”). In this regard, each of the Underwriters shall act as trustee for the Beneficiaries of the covenants of the Corporation under this Section 11 with respect to the Beneficiaries and accept these trusts and will hold and enforce those covenants on behalf of the Beneficiaries.
11.4 In order to provide for just and equitable contribution in circumstances in which an indemnity provided in Section 11 would otherwise be available in accordance with its terms but is, for any reason not solely attributable to any one or more those persons. The obligations of the Indemnified Parties, held to be unavailable to or unenforceable by the Indemnified Parties or enforceable otherwise than in accordance with its terms, the Underwriters and the Corporation, as the case may be, shall contribute to the aggregate of all Claims (other than losses of profits in connection with the distribution of the Units and the Additional Common Shares and/or Additional Warrants) of the nature contemplated in Section 11 and suffered or incurred by the Indemnified Parties in proportions reflective of the relative benefits received by the Corporation and any Indemnified Party, as well as their relative fault and any other relevant equitable considerations, as determined by a court of competent jurisdiction; provided that the Underwriters shall not in any event be liable to contribute, in the aggregate, any amount in excess of the Underwriters’ Fee or any portion actually received.
11.5 No party guilty of gross negligence, wilful misconduct, fraud or fraudulent misrepresentation shall be entitled to claim indemnification under this Section 11 or contribution under Section 11.4 from any person who is not guilty of such gross negligence, wilful misconduct, fraud or fraudulent misrepresentation.
11.6 The rights to contribution provided in this section shall be hereunder are in addition to and not in derogation of any liabilities which the Corporation may otherwise have to the Agents or any other right to contribution which the Indemnified Parties may have by statute or otherwise at law provided that Section 11.4 shall apply, mutatis mutandis, in respect of that other rightParty.
11.7 The obligations under this Section 11 shall apply from the date of the Engagement Letters between the Lead Underwriters and the Corporation, and shall apply whether or not the transactions contemplated by this Agreement are completed and shall survive the completion of the transactions contemplated under this Agreement and the termination of this Agreement.
Appears in 1 contract
Samples: Agency Agreement (Cybin Inc.)
Indemnity by the Corporation. 11.1 The Corporation shall protect, hold harmless and indemnify each of the Underwriters, each person (a “Control Person”), if any, who controls any of the Underwriters within the meaning of Section 15 of the U.S. Securities Act applicable securities laws and their respective affiliates and their and each of their Control Persons and affiliates, respective directors, officers, employees, shareholders and agents (as applicable) (collectively, the “Indemnified Parties” and individually an “Indemnified Party”) from and against all losses, claims, damages, liabilities, costs and expenses, including, without limitation, all amounts paid to settle actions, satisfy judgments or awards or to enforce this indemnity and all reasonable legal fees and expenses on a solicitor and own client basis (collectively, a “Claim”) caused by or arising directly or indirectly by reason of the transactions contemplated in, or the services provided under, this Agreement including, without limitation:
(a) any breach by the Corporation of, or default under, any covenant or agreement of the Corporation in this Agreement which has not been waived by the Underwriters under this Agreement or any inaccuracy of any representation or warranty of the Corporation under this Agreement or any other document to be delivered pursuant hereto or the failure of the Corporation to comply with any of its obligations hereunder or thereunder;
(b) any information or statement (except any information or statement relating to the Underwriters, or any of them, provided by the Underwriters) contained in any of the Canadian Prospectus, the U.S. Prospectus, the Registration Statement, the Warrant Registration Statement, the Free Writing Canadian Debenture Shares Prospectus or the Issuer Free Writing Prospectus Debenture Shares Registration Statement (including any documents incorporated by reference therein) or any Supplemental Material or additional or ancillary material, information, evidence, return, report, application statement or document (collectively the “Additional Materials”) being or being alleged to be a misrepresentation or untrue or any omission or alleged omission to state in those documents any material fact (except facts relating to the Underwriters, or any of them, provided by the Underwriters) required to be stated in those documents or necessary to make any of the statements therein not misleading in light of the circumstances in which they were made;
(c) any order made or any inquiry, investigation or proceeding instituted, threatened or announced by any court, securities regulatory authority or stock exchange or by any other competent authority, based upon any untrue statement, omission or misrepresentation or alleged untrue statement, omission or misrepresentation (except a statement, omission or misrepresentation relating to the Underwriters, or any of them, provided by the Underwriters) contained in any of the Canadian Prospectus, the U.S. Prospectus, the Registration Statement, the Warrant Registration Statement, the Free Writing Canadian Debenture Shares Prospectus or the Issuer Free Writing Prospectus Debenture Shares Registration Statement (or any document incorporated by reference therein) or any Supplemental Material or any Additional Materials which operates to prevent or restrict the trading in or the sale or distribution of the UnitsConvertible Debentures, Additional Common SharesConvertible Debentures, Debenture Shares and Additional Warrants and Warrant Shares;
(d) the Corporation not complying with any requirement of any Applicable Securities Laws or U.S. securities laws relating to the Offering and any regulatory requirements (including any filing or notice in connection in any U.S. federal or state securities laws or rules of any stock exchange or quotation system);
(e) any order made by any regulatory authority that trading in or distribution of any of the Corporation’s securities is to cease or be suspended, including an order prohibiting the trade or distribution of any of the securities referred to herein;
(f) the failure or inability of the Corporation to allot, issue and deliver any or all of the certificates representing the Units and Warrant Shares Convertible Debentures and, if applicable, the Additional Common Shares and/or Additional Warrants Convertible Debentures in a form and denomination satisfactory to the Underwriters at the time and place as the Underwriters may reasonably require for the completion of the transaction referred to herein; and
(g) a determination made by any competent authority setting aside the trade or distribution of any of the securities referred to herein, other than as a result of a breach by any of the Underwriters of its covenants herein; and shall reimburse the Indemnified Parties for all reasonable costs, charges and expenses, as incurred, which any of them may pay or incur in connection with investigating or disputing any Claim or action related thereto including the fees and expenses of legal counsel on a solicitor and own client basis and including reimbursement paid to the Underwriters for the time spent by the Indemnified Parties in connection with any Claim payable at the normal per diem rates of such Indemnified Parties. This indemnity shall be in addition to any liability which the Corporation may otherwise have.
11.2 If any Claim contemplated by this Section 11 is asserted against any of the Indemnified Parties, or if any potential Claim contemplated by this Section 11 comes to the knowledge of any of the Indemnified Parties, the Indemnified Party concerned shall notify in writing the Corporation as soon as reasonably practicable, of the nature of the Claim (provided that any failure to so notify in respect of any potential Claim shall not affect the liability of the Corporation under this Section 11, except to the extent that such delay prejudices the Corporation’s ability to contest such Claim). The Corporation shall, subject to the following, be entitled (but not required) to assume the defence on behalf of the Indemnified Party of any suit brought to enforce the Claim; provided that the defence shall be through legal counsel selected by the Corporation and acceptable to the Indemnified Party, acting reasonably, and no admission of liability shall be made by the Corporation without the prior written consent of the Indemnified Party. An Indemnified Party shall have the right to employ separate counsel in any such suit and participate in its defence but the fees and expenses of that counsel shall be at the expense of the Indemnified Parties unless:
(a) the Corporation fails to assume the defence of the suit on behalf of the Indemnified Party within a reasonable time of receiving notice of the suit;
(b) the employment of that counsel has been authorized in writing by the Corporation; or
(c) the named parties to the suit (including any added or third parties) including the Corporation and the Indemnified Party have been advised in writing by outside counsel that representation of the Indemnified Party by counsel for the Corporation is inappropriate as a result of the potential or actual conflicting interests of those represented; (in each of the cases set out in Subsections 11.2(a), (b) or (c), the Corporation shall not have the right to assume the defence of the suit on behalf of the Indemnified Party, but the Corporation shall be liable to pay the reasonable fees and expenses of separate counsel for all Indemnified Parties and, in addition, of local counsel in each applicable jurisdiction on a solicitor and own client basis). Notwithstanding the foregoing, no settlement may be made by an Indemnified Party without the prior written consent of the Corporation, which consent shall not be unreasonably withheld.
11.3 The Corporation hereby acknowledges and agrees that, with respect to this Section 11, the Underwriters are contracting on their own behalf and as agents for their Control Persons, affiliates, directors, officers, employees, shareholders and agents and each of their Control Persons and affiliates’ respective directors, officers, employees, shareholders, and agents (collectively, the “Beneficiaries”). In this regard, each of the Underwriters shall act as trustee for the Beneficiaries of the covenants of the Corporation under this Section 11 with respect to the Beneficiaries and accept these trusts and will hold and enforce those covenants on behalf of the Beneficiaries.
11.4 In order to provide for just and equitable contribution in circumstances in which an indemnity provided in Section 11 would otherwise be available in accordance with its terms but is, for any reason not solely attributable to any one or more of the Indemnified Parties, held to be unavailable to or unenforceable by the Indemnified Parties or enforceable otherwise than in accordance with its terms, the Underwriters and the Corporation, as the case may be, shall contribute to the aggregate of all Claims (other than losses of profits in connection with the distribution of the Units Convertible Debentures and the Additional Common Shares and/or Additional WarrantsConvertible Debentures) of the nature contemplated in Section 11 and suffered or incurred by the Indemnified Parties in proportions reflective of the relative benefits received by the Corporation and any Indemnified Party, as well as their relative fault and any other relevant equitable considerations, as determined by a court of competent jurisdiction; provided that the Underwriters shall not in any event be liable to contribute, in the aggregate, any amount in excess of the Underwriters’ Fee or any portion actually received.
11.5 No party guilty of gross negligence, wilful misconduct, fraud or fraudulent misrepresentation shall be entitled to claim indemnification under this Section 11 or contribution under Section 11.4 from any person who is not guilty of such gross negligence, wilful misconduct, fraud or fraudulent misrepresentation.
11.6 The rights to contribution provided in this section shall be in addition to and not in derogation of any other right to contribution which the Indemnified Parties may have by statute or otherwise at law provided that Section 11.4 shall apply, mutatis mutandis, in respect of that other right.
11.7 The obligations under this Section 11 shall apply from the date of the Engagement Letters Letter referenced in section xix of the Bid Letter between the Lead Underwriters Underwriter and the Corporation, and shall apply whether or not the transactions contemplated by this Agreement are completed and shall survive the completion of the transactions contemplated under this Agreement and the termination of this Agreement.
Appears in 1 contract
Indemnity by the Corporation. 11.1 The Corporation shall protect, CAE Inc. hereby agrees to indemnify and hold harmless Scotia Capital Inc., RBC Dominion Securities and indemnify TD Securities Inc., BMO Xxxxxxx Xxxxx Inc., Xxxxxxx Xxxxx Canada Inc., CIBC World Markets Inc., HSBC Securities (Canada) Inc., BNP Paribas (Canada) Securities Inc., Citigroup Global Markets Canada Inc., Desjardins Securities Inc., X.X. Xxxxxx Securities Canada Inc. and National Bank Financial Inc. (hereinafter referred to as the “Underwriters”) and each of the Underwriterstheir respective directors, officers, employees, affiliates and agents and each person (a “Control Person”)person, if any, who controls any of the Underwriters Underwriter within the meaning of Section section 15 of the U.S. Securities 1933 Act, as amended, or section 20 of the 1934 Act and their respective affiliates the successors and their and each assigns of their Control Persons and affiliates, respective directors, officers, employees, shareholders and agents (as applicable) (collectively, the “Indemnified Parties” and individually an “Indemnified Party”) foregoing from and against all lossesliabilities, claims, losses (other than loss of profits and other consequential damages), liabilitiesreasonable costs, costs damages and expenses, reasonable expenses (including, without limitation, all amounts paid to settle actions, satisfy judgments or awards or to enforce this indemnity and all reasonable limitation any legal fees and or other expenses on a solicitor and own client basis reasonably incurred by the Underwriters in connection with defending or investigating any such action or claim) (collectively, a “Claim”) in any way caused by by, or arising directly or indirectly by reason of the transactions contemplated infrom, or the services provided under, this Agreement including, without limitationin consequence of:
(a) any breach by the Corporation of, or default under, any covenant or agreement of the Corporation in this Agreement which has not been waived by the Underwriters under this Agreement or any inaccuracy of any representation or warranty of the Corporation under this Agreement or any other document to be delivered pursuant hereto or the failure of the Corporation to comply with any of its obligations hereunder or thereunder;
(bi) any information or statement (except any statement made in reliance upon and in conformity with information or statement relating which has been provided in writing to the Underwriters, Corporation by or on behalf of any of them, provided by Underwriter or Underwriters through the UnderwritersLead Underwriters specifically for inclusion therein) contained in any of the Canadian ProspectusAgreement, the U.S. ProspectusInitial Registration Statement, the Registration Statement, the Warrant Registration StatementPreliminary Prospectuses, the Free Writing Prospectus or the Prospectuses, any Supplementary Material, any Issuer Free Writing Prospectus (including Prospectus, any documents incorporated by reference therein) Corporation Additional Written Communication or any Supplemental Material Prospectus Amendments (as such terms are defined in the Agreement) thereto, which, at the time and in the light of the circumstances under which it was made, is or additional or ancillary material, information, evidence, return, report, application statement or document (collectively the “Additional Materials”) being or being is alleged to be a misrepresentation or untrue or statement of a material fact;
(ii) any omission or alleged omission to state in those documents the Initial Registration Statement, the Registration Statement, the Preliminary Prospectuses, the Prospectuses, any Supplementary Material, , any Issuer Free Writing Prospectus, any Corporation Additional Written Communication or any Prospectus Amendments thereto, , any material fact (except facts relating any omission or alleged omission made in reliance upon and in conformity with information which has been provided in writing to the Underwriters, Corporation by or on behalf of any of them, provided by Underwriter or Underwriters through the UnderwritersLead Underwriters specifically for inclusion therein) required to be stated in those documents or regarding the Corporation and its operations and affairs that is necessary to make any of the statements statement therein not misleading in light of the circumstances in which they were it was made;
(ciii) any order made or any inquiryenquiry, investigation or proceeding instituted, proceedings commenced or threatened or announced by any court, securities regulatory authority commission or stock exchange or by any other competent authority, authority based upon any untrue statementstatement of a material fact or omission of a material fact, in each case required to be stated therein or necessary to make the statements therein not misleading or alleged untrue statement of a material fact or alleged omission of a material fact, in each case required to be stated therein or necessary to make the statements therein not misleading or any misrepresentation or alleged misrepresentation (except a statement or omission or alleged statement or omission or misrepresentation or alleged untrue statement, omission or misrepresentation (except a statement, omission or misrepresentation relating made in reliance upon and in conformity with information which has been provided in writing to the Underwriters, Corporation by or on behalf of any of them, provided by Underwriter through the UnderwritersLead Underwriters specifically for inclusion therein) contained in any of the Canadian Prospectus, the U.S. ProspectusInitial Registration Statement, the Registration Statement, the Warrant Registration StatementPreliminary Prospectuses, the Free Writing Prospectus or the Prospectuses, any Supplementary Material, any Issuer Free Writing Prospectus (Prospectus, any Corporation Additional Written Communication or any document incorporated Prospectus Amendments or based upon any failure to comply with the Applicable Securities Laws (as such term is defined in the Agreement) (other than any failure or alleged failure to comply by reference therein) any such Underwriter or any Supplemental Material Underwriters), preventing or any Additional Materials which operates to prevent or restrict restricting the trading in or the sale or distribution of the Units, Additional Common Shares, Additional Warrants and Warrant SharesPurchased Securities;
(div) the non-compliance or alleged non-compliance by the Corporation not complying with any requirement of any Applicable Securities Laws or U.S. securities laws relating to the Offering and any regulatory requirements (including any filing or notice in connection in any U.S. federal or state securities laws or rules of any stock exchange or quotation system);
(e) any order made by any regulatory authority that trading in or distribution of any of the Corporation’s securities is to cease or be suspended, including an order prohibiting the trade or distribution of any of the securities referred to herein;
(f) the failure or inability of the Corporation to allot, issue and deliver any or all of the certificates representing the Units and Warrant Shares and, if applicable, the Additional Common Shares and/or Additional Warrants in a form and denomination satisfactory to the Underwriters at the time and place as the Underwriters may reasonably require for the completion of the transaction referred to herein; and
(g) a determination made by any competent authority setting aside the trade or distribution of any of the securities referred to herein, other than as a result of a breach by any of the Underwriters of its covenants herein; and shall reimburse the Indemnified Parties for all reasonable costs, charges and expenses, as incurred, which any of them may pay or incur in connection with investigating or disputing any Claim or action related thereto including the fees and expenses of legal counsel on a solicitor and own client basis and including reimbursement paid to the Underwriters for the time spent by the Indemnified Parties in connection with any Claim payable at the normal per diem rates of such Indemnified Parties. This indemnity shall be in addition to any liability which the Corporation may otherwise have.
11.2 If any Claim contemplated by this Section 11 is asserted against any of the Indemnified Parties, or if any potential Claim contemplated by this Section 11 comes to the knowledge of any of the Indemnified Parties, the Indemnified Party concerned shall notify in writing the Corporation as soon as reasonably practicable, of the nature of the Claim (provided that any failure to so notify in respect of any potential Claim shall not affect the liability of the Corporation under this Section 11, except to the extent that such delay prejudices the Corporation’s ability to contest such Claim). The Corporation shall, subject to the following, be entitled (but not required) to assume the defence on behalf of the Indemnified Party of any suit brought to enforce the Claim; provided that the defence shall be through legal counsel selected by the Corporation and acceptable to the Indemnified Party, acting reasonably, and no admission of liability shall be made by the Corporation without the prior written consent of the Indemnified Party. An Indemnified Party shall have the right to employ separate counsel in any such suit and participate in its defence but the fees and expenses of that counsel shall be at the expense of the Indemnified Parties unless:
(a) the Corporation fails to assume the defence of the suit on behalf of the Indemnified Party within a reasonable time of receiving notice of the suit;
(b) the employment of that counsel has been authorized in writing by the CorporationApplicable Securities Laws; or
(cv) the named parties to the suit (including any added or third parties) including the Corporation and the Indemnified Party have been advised in writing by outside counsel that representation of the Indemnified Party by counsel for the Corporation is inappropriate as a result of the potential or actual conflicting interests of those represented; (in each of the cases set out in Subsections 11.2(a), (b) or (c), the Corporation shall not have the right to assume the defence of the suit on behalf of the Indemnified Party, but the Corporation shall be liable to pay the reasonable fees and expenses of separate counsel for all Indemnified Parties and, in addition, of local counsel in each applicable jurisdiction on a solicitor and own client basis). Notwithstanding the foregoing, no settlement may be made by an Indemnified Party without the prior written consent of the Corporation, which consent shall not be unreasonably withheld.
11.3 The Corporation hereby acknowledges and agrees that, with respect to this Section 11, the Underwriters are contracting on their own behalf and as agents for their Control Persons, affiliates, directors, officers, employees, shareholders and agents and each of their Control Persons and affiliates’ respective directors, officers, employees, shareholders, and agents (collectively, the “Beneficiaries”). In this regard, each of the Underwriters shall act as trustee for the Beneficiaries of the covenants of the Corporation under this Section 11 with respect to the Beneficiaries and accept these trusts and will hold and enforce those covenants on behalf of the Beneficiaries.
11.4 In order to provide for just and equitable contribution in circumstances in which an indemnity provided in Section 11 would otherwise be available in accordance with its terms but is, for any reason not solely attributable to any one or more of the Indemnified Parties, held to be unavailable to or unenforceable by the Indemnified Parties or enforceable otherwise than in accordance with its terms, the Underwriters and the Corporation, as the case may be, shall contribute to the aggregate of all Claims (other than losses of profits in connection with the distribution of the Units and the Additional Common Shares and/or Additional Warrants) of the nature contemplated in Section 11 and suffered or incurred by the Indemnified Parties in proportions reflective of the relative benefits received breach by the Corporation and any Indemnified Partyof its material representations, as well as their relative fault and any other relevant equitable considerationswarranties, as determined by a court of competent jurisdiction; provided that covenants or obligations to be complied with under the Underwriters shall not in any event be liable to contribute, in the aggregate, any amount in excess of the Underwriters’ Fee or any portion actually received.
11.5 No party guilty of gross negligence, wilful misconduct, fraud or fraudulent misrepresentation shall be entitled to claim indemnification under this Section 11 or contribution under Section 11.4 from any person who is not guilty of such gross negligence, wilful misconduct, fraud or fraudulent misrepresentation.
11.6 The rights to contribution provided in this section shall be in addition to and not in derogation of any other right to contribution which the Indemnified Parties may have by statute or otherwise at law provided that Section 11.4 shall apply, mutatis mutandis, in respect of that other right.
11.7 The obligations under this Section 11 shall apply from the date of the Engagement Letters between the Lead Underwriters and the Corporation, and shall apply whether or not the transactions contemplated by this Agreement are completed and shall survive the completion of the transactions contemplated under this Agreement and the termination of this Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Cae Inc)
