Registration Rights Indemnification. i) The Company agrees to indemnify and hold harmless the Holder, its officers and directors (or persons occupying similar positions) and each person, if any, who controls the Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Purchaser Party” and collectively the “Purchaser Parties”), to the fullest extent permitted by applicable law, from and against any losses, claims, damages or liabilities (collectively, “Losses”) to which they may become subject (under the Securities Act or otherwise) insofar as such Losses arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in a Resale Registration Statement or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading , and the Company will, as incurred, reimburse the Purchaser Parties for any documented legal or other expenses reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim; provided, however, that the Company shall not be liable to any Purchaser Party in any such case to the extent that such Loss arises out of, or is based upon an untrue statement or omission or alleged untrue statement or omission made in a Resale Registration Statement in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Holder specifically for use in preparation of a Resale Registration Statement; provided further, however, that the Company shall not be liable to any Purchaser Party (or any officer or director (or person occupying a similar position) or controlling person of the Holder) to the extent that any such Loss is caused by an untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus if either (i) (A) the Holder failed to send or deliver a copy of the final prospectus with or prior to, or the Holder failed to confirm that a final prospectus was deemed to be delivered prior to (in accordance with Rule 172 of the Securities Act), the delivery of written confirmation of the sale by the Holder to the person asserting the claim from which such Loss resulted and (B) the final prospectus corrected such untrue statement or omission, or (ii) (X) such untrue statement or omission is corrected in an amendment or supplement to the prospectus and (Y) having previously been furnished by or on behalf of the Company with copies of the prospectus as so amended or supplemented or notified by the Company that such amended or supplemented prospectus has been filed with the SEC, in accordance with Rule 172 of the Securities Act, the Holder thereafter fails to deliver such prospectus as so amended or supplemented, with or prior to or the Holder fails to confirm that the prospectus as so Microvast Holdings, Inc. | Warrant Page 14 amended or supplemented was deemed to be delivered prior to (in accordance with Rule 172 of the Securities Act), the delivery of written confirmation of the sale by the Holder to the person asserting the claim from which such Loss resulted. ii) The Holder (severally and not jointly in the event any portion of this Warrant is assigned after its initial issuance) agrees to indemnify and hold harmless the Company and its officers and directors (or persons occupying similar positions) and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each a “Company Party” and collectively the “Company Parties”), to the fullest extent permitted by applicable law, from and against any Losses to which the Company Parties may become subject (under the Securities Act or otherwise), insofar as such Losses arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in a Resale Registration Statement (or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading), if, and only to the extent, such untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with written information furnished by or on behalf of the Holder specifically for use in preparation of a Resale Registration Statement, and the Holder will, as incurred, reimburse each Company Party for any documented legal or other expenses reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim; provided, however, that in no event shall any indemnity under this Section 5(d) be greater in amount than the dollar amount of the net proceeds received by the Holder upon its sale of the Registrable Shares included in the Resale Registration Statement giving rise to such indemnification obligation. Upon receipt of written notice from the Company that a Registration Statement or prospectus contains any untrue statement or alleged untrue statement of a material fact (or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading), the Holder shall discontinue dispositions of Registrable Shares as promptly as practicable until it has received copies of a supplemented or amended prospectus correcting such statement or omission. iii) Promptly after receipt by any indemnified Person of a notice of a claim or the beginning of any action in respect of which indemnity is to be sought against an indemnifying Person pursuant to this Section 5(d), such indemnified Person shall notify the indemnifying Person in writing of such claim or of the commencement of such action (provided that the failure to give such notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying Person), and, subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified Person and such indemnifying Person shall have been notified thereof, such indemnifying Person shall, unless in such indemnified Person’s reasonable judgment a conflict of interest may exist with respect to such claim between the indemnified Person and indemnifying Person, be entitled to participate therein, and, at its election, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified Person. After notice from the indemnifying Person to such indemnified Person of its election to assume the defense thereof (with such notice to affirmatively state such indemnifying Person’s obligation to indemnify the indemnified Person with respect to such claim in accordance with the terms hereof), such indemnifying Person shall not be liable to such indemnified Person for any legal Microvast Holdings, Inc. | Warrant Page 15 expenses subsequently incurred by such indemnified person in connection with the defense thereof; provided, however, that if there exists a conflict of interest that would make it inappropriate in the reasonable judgment of the indemnified Person for the same counsel to represent both the indemnified Person and such indemnifying Person, the indemnified Person shall be entitled to retain its own counsel at the expense of such indemnifying Person; provided, further, that no indemnifying Person shall be responsible for the fees and expense of more than one separate counsel for all indemnified parties. The indemnifying Person shall not settle an action without the consent of the indemnified Person, which consent shall not be unreasonably withheld, if such settlement (A) provides for the payment of monetary damages which will not be paid by the indemnifying Person, (B) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified Person of a release from all liability in respect of such action, or (C) includes any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified Person. iv) If the indemnification provided for in this Section 5(d) is held by a court of competent jurisdiction to be unavailable to an indemnified Person with respect to any losses, claims, damages or liabilities referred to herein, the indemnifying Person, in lieu of indemnifying such indemnified Person hereunder, shall, to the extent permitted by applicable law, contribute to the amount paid or payable by such indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnifying Person, on the one hand, and of the indemnified Person, on the other, as well as any other relevant equitable considerations; provided, that in no event shall any contribution by an indemnifying Person hereunder be greater in amount than the dollar amount of the proceeds received by such indemnifying Person upon the sale of such Registrable Shares. The relative fault of the indemnifying Person and indemnified Person shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying Person or indemnified Person, and the indemnifying Person’s and indemnified Person’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The Holder and the Company hereby agree that it would not be just or equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this Section 5(d). No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 5(d) from any Person who was not guilty of such fraudulent misrepresentation. The indemnification provided for under this Section 5(d) shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified Person or any officer, director or controlling person of such indemnified Person and shall survive any transfer of Registrable Shares.
Appears in 1 contract
Samples: Common Stock Purchase Warrant (Microvast Holdings, Inc.)
Registration Rights Indemnification. (i) The Company agrees to indemnify and hold harmless the HolderBuyers and their respective affiliates, its officers partners, members, officers, directors, agents and directors (or persons occupying similar positions) representatives, and each person, if any, who controls the Holder a Buyer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange 1934 Act (each, a “Purchaser Party” and collectively the “Purchaser Parties”), to the fullest extent permitted by applicable law, from and against any losses, claims, damages or liabilities (collectively, “Losses”) to which they may become subject (under the Securities Act or otherwise) insofar as such Losses (or actions or proceedings in respect thereof) arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in a the Resale Registration Statement or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading , or arise out of any failure by the Company to fulfill any undertaking included in the Resale Registration Statement and the Company will, as incurred, reimburse the Purchaser Parties for any documented legal or other expenses reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim; provided, however, that the Company shall not be liable to any Purchaser Party in any such case to the extent that such Loss arises out of, or is based upon an untrue statement or omission or alleged untrue statement or omission made in a such Resale Registration Statement in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Holder Buyers specifically for use in preparation of a the Resale Registration Statement; provided further, however, that the Company shall not be liable to any Purchaser Party (or any officer or partner, member, officer, director (or person occupying a similar position) or controlling person of the Holdera Buyer) to the extent that any such Loss is caused by an untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus if either (i) (A) the Holder Buyers failed to send or deliver a copy of the final prospectus with or prior to, or the Holder Buyers failed to confirm that a final prospectus was deemed to be delivered prior to (in accordance with Rule 172 of the Securities Act), the delivery of written confirmation of the sale by the Holder Buyers to the person asserting the claim from which such Loss resulted and (B) the final prospectus corrected such untrue statement or omission, or (ii) (X) such untrue statement or omission is corrected in an amendment or supplement to the prospectus and (Y) having previously been furnished by or on behalf of the Company with copies of the prospectus as so amended or supplemented or notified by the Company that such amended or supplemented prospectus has been filed with the SEC, in accordance with Rule 172 of the Securities Act, the Holder Buyers thereafter fails to deliver such prospectus as so amended or supplemented, with or prior to or the Holder Buyers fails to confirm that the prospectus as so Microvast Holdings, Inc. | Warrant Page 14 amended or supplemented was deemed to be delivered prior to (in accordance with Rule 172 of the Securities Act), the delivery of written confirmation of the sale by the Holder Buyers to the person asserting the claim from which such Loss resulted.
(ii) The Holder (severally and not jointly in the event any portion of this Warrant is assigned after its initial issuance) agrees Buyers agree to indemnify and hold harmless the Company and its officers officers, directors, affiliates, agents and directors (or persons occupying similar positions) representatives and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange 1934 Act (each a “Company Party” and collectively the “Company Parties”), to the fullest extent permitted by applicable law, from and against any Losses to which the Company Parties may become subject (under the Securities Act or otherwise), insofar as such Losses (or actions or proceedings in respect thereof) arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in a the Resale Registration Statement (or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingmisleading in each case, on the effective date thereof), if, and only to the extent, such untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with written information furnished by or on behalf of the Holder Buyers specifically for use in preparation of a the Resale Registration Statement, and the Holder Buyers will, as incurred, reimburse each Company Party for any documented legal or other expenses reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim; provided, however, that in no event shall any indemnity under this Section 5(d4(x) be greater in amount than the dollar amount of the net proceeds received by the Holder Buyers upon its their sale of the Registrable Shares included in the Resale Registration Statement giving rise to such indemnification obligation. Upon receipt of written notice from the Company that a Registration Statement or prospectus contains any untrue statement or alleged untrue statement of a material fact (or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading), the Holder shall discontinue dispositions of Registrable Shares as promptly as practicable until it has received copies of a supplemented or amended prospectus correcting such statement or omission.
(iii) Promptly after receipt by any indemnified Person person of a notice of a claim or the beginning of any action in respect of which indemnity is to be sought against an indemnifying Person person pursuant to this Section 5(d4(x), such indemnified Person person shall notify the indemnifying Person person in writing of such claim or of the commencement of such action (provided that the failure to give such notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying Person)action, and, subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified Person person and such indemnifying Person person shall have been notified thereof, such indemnifying Person shall, unless in such indemnified Person’s reasonable judgment a conflict of interest may exist with respect to such claim between the indemnified Person and indemnifying Person, person shall be entitled to participate therein, and, at its electionto the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified Personperson. After notice from the indemnifying Person person to such indemnified Person person of its election to assume the defense thereof (with such notice to affirmatively state such indemnifying Person’s obligation to indemnify the indemnified Person with respect to such claim in accordance with the terms hereof)thereof, such indemnifying Person person shall not be liable to such indemnified Person person for any legal Microvast Holdings, Inc. | Warrant Page 15 expenses subsequently incurred by such indemnified person in connection with the defense thereof; provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate in the reasonable judgment of the indemnified Person person for the same counsel to represent both the indemnified Person person and such indemnifying Personperson or any affiliate or associate thereof, the indemnified Person person shall be entitled to retain its own counsel at the expense of such indemnifying Personperson; provided, further, that no indemnifying Person person shall be responsible for the fees and expense of more than one separate counsel for all indemnified parties. The indemnifying Person party shall not settle an action without the consent of the indemnified Personparty, which consent shall not be unreasonably withheld.
(iv) If after proper notice of a claim or the commencement of any action against the indemnified party, if such settlement (A) provides for the indemnifying party does not choose to participate, then the indemnified party shall assume the defense thereof and upon written notice by the indemnified party requesting advance payment of monetary damages which will not be paid a stated amount for its reasonable defense costs and expenses, the indemnifying party shall advance payment for such reasonable defense costs and expenses (the “Advance Indemnification Payment”) to the indemnified party. In the event that the indemnified party’s actual defense costs and expenses exceed the amount of the Advance Indemnification Payment, then upon written request by the indemnified party, the indemnifying Personparty shall reimburse the indemnified party for such difference; in the event that the Advance Indemnification Payment exceeds the indemnified party’s actual costs and expenses, (B) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified Person of a release from all liability in respect party shall promptly remit payment of such action, or (C) includes any statement as difference to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified Personthe indemnifying party.
iv(v) If the indemnification provided for in this Section 5(d4(x) is held by a court of competent jurisdiction to be unavailable to an indemnified Person party with respect to any losses, claims, damages or liabilities referred to herein, the indemnifying Personparty, in lieu of indemnifying such indemnified Person hereunderparty thereunder, shall, shall to the extent permitted by applicable law, law contribute to the amount paid or payable by such indemnified Person party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnifying Person, party on the one hand, hand and of the indemnified Person, party on the other, as well as any other relevant equitable considerations; provided, that in no event shall any contribution by an indemnifying Person party hereunder be greater in amount than the dollar amount of the proceeds received by such indemnifying Person party upon the sale of such Registrable Shares. The relative fault of the indemnifying Person and indemnified Person shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying Person or indemnified Person, and the indemnifying Person’s and indemnified Person’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The Holder and the Company hereby agree that it would not be just or equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this Section 5(d). No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 5(d) from any Person who was not guilty of such fraudulent misrepresentation. The indemnification provided for under this Section 5(d) shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified Person or any officer, director or controlling person of such indemnified Person and shall survive any transfer of Registrable Shares.
Appears in 1 contract
Samples: Securities Purchase and Exchange Agreement (Mohawk Group Holdings, Inc.)
Registration Rights Indemnification. (i) The Company agrees to indemnify and hold harmless the HolderBuyers and their respective affiliates, its officers partners, members, officers, directors, agents and directors (or persons occupying similar positions) representatives, and each person, if any, who controls the Holder a Buyer within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act (each, a “Purchaser Party” and collectively the “Purchaser Parties”), to the fullest extent permitted by applicable law, from and against any losses, claims, damages or liabilities (collectively, “Losses”) to which they may become subject (under the Securities 1933 Act or otherwise) insofar as such Losses (or actions or proceedings in respect thereof) arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in a Resale Registration Statement or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading , or arise out of any failure by the Company to fulfill any undertaking included in a Resale Registration Statement and the Company will, as incurred, reimburse the Purchaser Parties for any documented legal or other expenses reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim; provided, however, that the Company shall not be liable to any Purchaser Party in any such case to the extent that such Loss arises out of, or is based upon an untrue statement or omission or alleged untrue statement or omission made in a Resale Registration Statement in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Holder Buyers specifically for use in preparation of a Resale Registration Statement; provided further, however, that the Company shall not be liable to any Purchaser Party (or any officer or partner, member, officer, director (or person occupying a similar position) or controlling person of the Holdera Buyer) to the extent that any such Loss is caused by an untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus if either (i) (A) the Holder Buyers failed to send or deliver a copy of the final prospectus with or prior to, or the Holder Buyers failed to confirm that a final prospectus was deemed to be delivered prior to (in accordance with Rule 172 of the Securities 1933 Act), the delivery of written confirmation of the sale by the Holder Buyers to the person asserting the claim from which such Loss resulted and (B) the final prospectus corrected such untrue statement or omission, or (ii) (X) such untrue statement or omission is corrected in an amendment or supplement to the prospectus and (Y) having previously been furnished by or on behalf of the Company with copies of the prospectus as so amended or supplemented or notified by the Company that such amended or supplemented prospectus has been filed with the SEC, in accordance with Rule 172 of the Securities 1933 Act, the Holder Buyers thereafter fails to deliver such prospectus as so amended or supplemented, with or prior to or the Holder Buyers fails to confirm that the prospectus as so Microvast Holdings, Inc. | Warrant Page 14 amended or supplemented was deemed to be delivered prior to (in accordance with Rule 172 of the Securities 1933 Act), the delivery of written confirmation of the sale by the Holder Buyers to the person asserting the claim from which such Loss resulted.
(ii) The Holder (severally and not jointly in the event any portion of this Warrant is assigned after its initial issuance) agrees Buyers agree to indemnify and hold harmless the Company and its officers officers, directors, affiliates, agents and directors (or persons occupying similar positions) representatives and each person, if any, who controls the Company within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act (each a “Company Party” and collectively the “Company Parties”), to the fullest extent permitted by applicable law, from and against any Losses to which the Company Parties may become subject (under the Securities 1933 Act or otherwise), insofar as such Losses (or actions or proceedings in respect thereof) arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in a Resale Registration Statement (or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingmisleading in each case, on the effective date thereof), if, and only to the extent, such untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with written information furnished by or on behalf of the Holder Buyers specifically for use in preparation of a Resale Registration Statement, and the Holder Buyers will, as incurred, reimburse each Company Party for any documented legal or other expenses reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim; provided, however, that in no event shall any indemnity under this Section 5(d4(x) be greater in amount than the dollar amount of the net proceeds received by the Holder Buyers upon its their sale of the Registrable Shares included in the Resale Registration Statement giving rise to such indemnification obligation. Upon receipt of written notice from the Company that a Registration Statement or prospectus contains any untrue statement or alleged untrue statement of a material fact (or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading), the Holder shall discontinue dispositions of Registrable Shares as promptly as practicable until it has received copies of a supplemented or amended prospectus correcting such statement or omission.
(iii) Promptly after receipt by any indemnified Person person of a notice of a claim or the beginning of any action in respect of which indemnity is to be sought against an indemnifying Person person pursuant to this Section 5(d4(x), such indemnified Person person shall notify the indemnifying Person person in writing of such claim or of the commencement of such action (provided that the failure to give such notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying Person)action, and, subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified Person person and such indemnifying Person person shall have been notified thereof, such indemnifying Person shall, unless in such indemnified Person’s reasonable judgment a conflict of interest may exist with respect to such claim between the indemnified Person and indemnifying Person, person shall be entitled to participate therein, and, at its electionto the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified Personperson. After notice from the indemnifying Person person to such indemnified Person person of its election to assume the defense thereof (with such notice to affirmatively state such indemnifying Person’s obligation to indemnify the indemnified Person with respect to such claim in accordance with the terms hereof)thereof, such indemnifying Person person shall not be liable to such indemnified Person person for any legal Microvast Holdings, Inc. | Warrant Page 15 expenses subsequently incurred by such indemnified person in connection with the defense thereof; provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate in the reasonable judgment of the indemnified Person person for the same counsel to represent both the indemnified Person person and such indemnifying Personperson or any affiliate or associate thereof, the indemnified Person person shall be entitled to retain its own counsel at the expense of such indemnifying Personperson; provided, further, that no indemnifying Person person shall be responsible for the fees and expense of more than one separate counsel for all indemnified parties. The indemnifying Person party shall not settle an action without the consent of the indemnified Personparty, which consent shall not be unreasonably withheld.
(iv) If after proper notice of a claim or the commencement of any action against the indemnified party, if such settlement (A) provides for the indemnifying party does not choose to participate, then the indemnified party shall assume the defense thereof and upon written notice by the indemnified party requesting advance payment of monetary damages which will not be paid a stated amount for its reasonable defense costs and expenses, the indemnifying party shall advance payment for such reasonable defense costs and expenses (the “Advance Indemnification Payment”) to the indemnified party. In the event that the indemnified party’s actual defense costs and expenses exceed the amount of the Advance Indemnification Payment, then upon written request by the indemnified party, the indemnifying Personparty shall reimburse the indemnified party for such difference; in the event that the Advance Indemnification Payment exceeds the indemnified party’s actual costs and expenses, (B) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified Person of a release from all liability in respect party shall promptly remit payment of such action, or (C) includes any statement as difference to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified Personthe indemnifying party.
iv(v) If the indemnification provided for in this Section 5(d4(x) is held by a court of competent jurisdiction to be unavailable to an indemnified Person party with respect to any losses, claims, damages or liabilities referred to herein, the indemnifying Personparty, in lieu of indemnifying such indemnified Person hereunderparty thereunder, shall, shall to the extent permitted by applicable law, law contribute to the amount paid or payable by such indemnified Person party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnifying Person, party on the one hand, hand and of the indemnified Person, party on the other, as well as any other relevant equitable considerations; provided, that in no event shall any contribution by an indemnifying Person party hereunder be greater in amount than the dollar amount of the proceeds received by such indemnifying Person party upon the sale of such Registrable Shares. The relative fault of the indemnifying Person and indemnified Person shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying Person or indemnified Person, and the indemnifying Person’s and indemnified Person’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The Holder and the Company hereby agree that it would not be just or equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this Section 5(d). No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 5(d) from any Person who was not guilty of such fraudulent misrepresentation. The indemnification provided for under this Section 5(d) shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified Person or any officer, director or controlling person of such indemnified Person and shall survive any transfer of Registrable Shares.
Appears in 1 contract
Samples: Securities Purchase Agreement (AMERICAN BATTERY TECHNOLOGY Co)
Registration Rights Indemnification. (i) The Company agrees to indemnify and hold harmless the HolderBuyers and their respective affiliates, its officers partners, members, officers, directors, agents, brokers and directors (or persons occupying similar positions) representatives, and each person, if any, who controls the Holder a Buyer within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act (each, a “Purchaser Party” and collectively the “Purchaser Parties”), to the fullest extent permitted by applicable law, from and against any losses, claims, damages or liabilities (collectively, “Losses”) to which they may become subject (under the Securities 1933 Act or otherwise) insofar as such Losses (or actions or proceedings in respect thereof) arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in a Resale Registration Statement or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading , or arise out of any failure by the Company to fulfill any undertaking included in a Resale Registration Statement and the Company will, as incurred, reimburse the Purchaser Parties for any documented legal or other expenses reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim; provided, however, that the Company shall not be liable to any Purchaser Party in any such case to the extent that such Loss arises out of, or is based upon an untrue statement or omission or alleged untrue statement or omission made in a Resale Registration Statement in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Holder Buyers specifically for use in preparation of a Resale Registration Statement; provided further, however, that the Company shall not be liable to any Purchaser Party (or any officer or director (or person occupying a similar position) or controlling person of the Holder) to the extent that any such Loss is caused by an untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus if either (i) (A) the Holder failed to send or deliver a copy of the final prospectus with or prior to, or the Holder failed to confirm that a final prospectus was deemed to be delivered prior to (in accordance with Rule 172 of the Securities Act), the delivery of written confirmation of the sale by the Holder to the person asserting the claim from which such Loss resulted and (B) the final prospectus corrected such untrue statement or omission, or .
(ii) (X) such untrue statement or omission is corrected in an amendment or supplement to the prospectus and (Y) having previously been furnished by or on behalf of the Company with copies of the prospectus as so amended or supplemented or notified by the Company that such amended or supplemented prospectus has been filed with the SEC, in accordance with Rule 172 of the Securities Act, the Holder thereafter fails to deliver such prospectus as so amended or supplemented, with or prior to or the Holder fails to confirm that the prospectus as so Microvast Holdings, Inc. | Warrant Page 14 amended or supplemented was deemed to be delivered prior to (in accordance with Rule 172 of the Securities Act), the delivery of written confirmation of the sale by the Holder to the person asserting the claim from which such Loss resulted.
ii) The Holder (severally and not jointly in the event any portion of this Warrant is assigned after its initial issuance) agrees Buyers agree to indemnify and hold harmless the Company and its officers officers, directors, affiliates, agents, brokers and directors (or persons occupying similar positions) representatives and each person, if any, who controls the Company within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act (each a “Company Party” and collectively the “Company Parties”), to the fullest extent permitted by applicable law, from and against any Losses to which the Company Parties may become subject (under the Securities 1933 Act or otherwise), insofar as such Losses (or actions or proceedings in respect thereof) arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in a Resale Registration Statement (or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingmisleading in each case, on the effective date thereof), if, and only to the extent, such untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with written information furnished by or on behalf of the Holder Buyers specifically for use in preparation of a Resale Registration Statement, and the Holder Buyers will, as incurred, reimburse each Company Party for any documented legal or other expenses reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim; provided, however, that in no event shall any indemnity under this Section 5(d4(w) be greater in amount than the dollar amount of the net proceeds received by the Holder Buyers upon its their sale of the Registrable Shares included in the Resale Registration Statement giving rise to such indemnification obligation. Upon receipt of written notice from the Company that a Registration Statement or prospectus contains any untrue statement or alleged untrue statement of a material fact (or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading), the Holder shall discontinue dispositions of Registrable Shares as promptly as practicable until it has received copies of a supplemented or amended prospectus correcting such statement or omission.
(iii) Promptly after receipt by any indemnified Person person of a notice of a claim or the beginning of any action in respect of which indemnity is to be sought against an indemnifying Person person pursuant to this Section 5(d4(w), such indemnified Person person shall notify the indemnifying Person person in writing of such claim or of the commencement of such action (provided that the failure to give such notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying Person)action, and, subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified Person person and such indemnifying Person person shall have been notified thereof, such indemnifying Person shall, unless in such indemnified Person’s reasonable judgment a conflict of interest may exist with respect to such claim between the indemnified Person and indemnifying Person, person shall be entitled to participate therein, and, at its electionto the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified Personperson. After notice from the indemnifying Person person to such indemnified Person person of its election to assume the defense thereof (with such notice to affirmatively state such indemnifying Person’s obligation to indemnify the indemnified Person with respect to such claim in accordance with the terms hereof)thereof, such indemnifying Person person shall not be liable to such indemnified Person person for any legal Microvast Holdings, Inc. | Warrant Page 15 expenses subsequently incurred by such indemnified person in connection with the defense thereof; provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate in the reasonable judgment of the indemnified Person person for the same counsel to represent both the indemnified Person person and such indemnifying Personperson or any affiliate or associate thereof, the indemnified Person person shall be entitled to retain its own counsel at the expense of such indemnifying Personperson; provided, further, that no indemnifying Person person shall be responsible for the fees and expense of more than one separate counsel for all indemnified parties. The indemnifying Person party shall not settle an action without the consent of the indemnified Personparty, which consent shall not be unreasonably withheld.
(iv) If after proper notice of a claim or the commencement of any action against the indemnified party, if such settlement (A) provides for the indemnifying party does not choose to participate, then the indemnified party shall assume the defense thereof and upon written notice by the indemnified party requesting advance payment of monetary damages which will not be paid a stated amount for its reasonable defense costs and expenses, the indemnifying party shall advance payment for such reasonable defense costs and expenses (the “Advance Indemnification Payment”) to the indemnified party. In the event that the indemnified party’s actual defense costs and expenses exceed the amount of the Advance Indemnification Payment, then upon written request by the indemnified party, the indemnifying Personparty shall reimburse the indemnified party for such difference; in the event that the Advance Indemnification Payment exceeds the indemnified party’s actual costs and expenses, (B) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified Person of a release from all liability in respect party shall promptly remit payment of such action, or (C) includes any statement as difference to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified Personthe indemnifying party.
iv(v) If the indemnification provided for in this Section 5(d4(w) is held by a court of competent jurisdiction to be unavailable to an indemnified Person party with respect to any losses, claims, damages or liabilities referred to herein, the indemnifying Personparty, in lieu of indemnifying such indemnified Person hereunderparty thereunder, shall, shall to the extent permitted by applicable law, law contribute to the amount paid or payable by such indemnified Person party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnifying Person, party on the one hand, hand and of the indemnified Person, party on the other, as well as any other relevant equitable considerations; provided, that in no event shall any contribution by an indemnifying Person party hereunder be greater in amount than the dollar amount of the proceeds received by such indemnifying Person party upon the sale of such Registrable Shares. The relative fault of the indemnifying Person and indemnified Person shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying Person or indemnified Person, and the indemnifying Person’s and indemnified Person’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The Holder and the Company hereby agree that it would not be just or equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this Section 5(d). No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 5(d) from any Person who was not guilty of such fraudulent misrepresentation. The indemnification provided for under this Section 5(d) shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified Person or any officer, director or controlling person of such indemnified Person and shall survive any transfer of Registrable Shares.
Appears in 1 contract
Registration Rights Indemnification. (i) The Company agrees to indemnify and hold harmless the HolderBuyers and their respective affiliates, its officers partners, members, officers, directors, agents and directors (or persons occupying similar positions) representatives, and each person, if any, who controls the Holder a Buyer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange 1934 Act (each, a “Purchaser Party” and collectively the “Purchaser Parties”), to the fullest extent permitted by applicable law, from and against any losses, claims, damages or liabilities (collectively, “Losses”) to which they may become subject (under the Securities Act or otherwise) insofar as such Losses (or actions or proceedings in respect thereof) arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in a Resale Registration Statement or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading , or arise out of any failure by the Company to fulfill any undertaking included in a Resale Registration Statement and the Company will, as incurred, reimburse the Purchaser Parties for any documented legal or other expenses reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim; provided, however, that the Company shall not be liable to any Purchaser Party in any such case to the extent that such Loss arises out of, or is based upon an untrue statement or omission or alleged untrue statement or omission made in a Resale Registration Statement in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Holder Buyers specifically for use in preparation of a Resale Registration Statement; provided further, however, that the Company shall not be liable to any Purchaser Party (or any officer or partner, member, officer, director (or person occupying a similar position) or controlling person of the Holdera Buyer) to the extent that any such Loss is caused by an untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus if either (i) (A) the Holder Buyers failed to send or deliver a copy of the final prospectus with or prior to, or the Holder Buyers failed to confirm that a final prospectus was deemed to be delivered prior to (in accordance with Rule 172 of the Securities Act), the delivery of written confirmation of the sale by the Holder Buyers to the person asserting the claim from which such Loss resulted and (B) the final prospectus corrected such untrue statement or omission, or (ii) (X) such untrue statement or omission is corrected in an amendment or supplement to the prospectus and (Y) having previously been furnished by or on behalf of the Company with copies of the prospectus as so amended or supplemented or notified by the Company that such amended or supplemented prospectus has been filed with the SEC, in accordance with Rule 172 of the Securities Act, the Holder Buyers thereafter fails to deliver such prospectus as so amended or supplemented, with or prior to or the Holder Buyers fails to confirm that the prospectus as so Microvast Holdings, Inc. | Warrant Page 14 amended or supplemented was deemed to be delivered prior to (in accordance with Rule 172 of the Securities Act), the delivery of written confirmation of the sale by the Holder Buyers to the person asserting the claim from which such Loss resulted.
(ii) The Holder (severally and not jointly in the event any portion of this Warrant is assigned after its initial issuance) agrees Buyers agree to indemnify and hold harmless the Company and its officers officers, directors, affiliates, agents and directors (or persons occupying similar positions) representatives and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange 1934 Act (each a “Company Party” and collectively the “Company Parties”), to the fullest extent permitted by applicable law, from and against any Losses to which the Company Parties may become subject (under the Securities Act or otherwise), insofar as such Losses (or actions or proceedings in respect thereof) arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in a Resale Registration Statement (or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingmisleading in each case, on the effective date thereof), if, and only to the extent, such untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with written information furnished by or on behalf of the Holder Buyers specifically for use in preparation of a Resale Registration Statement, and the Holder Buyers will, as incurred, reimburse each Company Party for any documented legal or other expenses reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim; provided, however, that in no event shall any indemnity under this Section 5(d4(y) be greater in amount than the dollar amount of the net proceeds received by the Holder Buyers upon its their sale of the Registrable Shares included in the Resale Registration Statement giving rise to such indemnification obligation. Upon receipt of written notice from the Company that a Registration Statement or prospectus contains any untrue statement or alleged untrue statement of a material fact (or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading), the Holder shall discontinue dispositions of Registrable Shares as promptly as practicable until it has received copies of a supplemented or amended prospectus correcting such statement or omission.
(iii) Promptly after receipt by any indemnified Person person of a notice of a claim or the beginning of any action in respect of which indemnity is to be sought against an indemnifying Person person pursuant to this Section 5(d4(cc), such indemnified Person person shall notify the indemnifying Person person in writing of such claim or of the commencement of such action (provided that the failure to give such notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying Person)action, and, subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified Person person and such indemnifying Person person shall have been notified thereof, such indemnifying Person shall, unless in such indemnified Person’s reasonable judgment a conflict of interest may exist with respect to such claim between the indemnified Person and indemnifying Person, person shall be entitled to participate therein, and, at its electionto the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified Personperson. After notice from the indemnifying Person person to such indemnified Person person of its election to assume the defense thereof (with such notice to affirmatively state such indemnifying Person’s obligation to indemnify the indemnified Person with respect to such claim in accordance with the terms hereof)thereof, such indemnifying Person person shall not be liable to such indemnified Person person for any legal Microvast Holdings, Inc. | Warrant Page 15 expenses subsequently incurred by such indemnified person in connection with the defense thereof; provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate in the reasonable judgment of the indemnified Person person for the same counsel to represent both the indemnified Person person and such indemnifying Personperson or any affiliate or associate thereof, the indemnified Person person shall be entitled to retain its own counsel at the expense of such indemnifying Personperson; provided, further, that no indemnifying Person person shall be responsible for the fees and expense of more than one separate counsel for all indemnified parties. The indemnifying Person party shall not settle an action without the consent of the indemnified Personparty, which consent shall not be unreasonably withheld.
(iv) If after proper notice of a claim or the commencement of any action against the indemnified party, if such settlement (A) provides for the indemnifying party does not choose to participate, then the indemnified party shall assume the defense thereof and upon written notice by the indemnified party requesting advance payment of monetary damages which will not be paid a stated amount for its reasonable defense costs and expenses, the indemnifying party shall advance payment for such reasonable defense costs and expenses (the “Advance Indemnification Payment”) to the indemnified party. In the event that the indemnified party’s actual defense costs and expenses exceed the amount of the Advance Indemnification Payment, then upon written request by the indemnified party, the indemnifying Personparty shall reimburse the indemnified party for such difference; in the event that the Advance Indemnification Payment exceeds the indemnified party’s actual costs and expenses, (B) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified Person of a release from all liability in respect party shall promptly remit payment of such action, or (C) includes any statement as difference to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified Personthe indemnifying party.
iv(v) If the indemnification provided for in this Section 5(d4(cc) is held by a court of competent jurisdiction to be unavailable to an indemnified Person party with respect to any losses, claims, damages or liabilities referred to herein, the indemnifying Personparty, in lieu of indemnifying such indemnified Person hereunderparty thereunder, shall, shall to the extent permitted by applicable law, law contribute to the amount paid or payable by such indemnified Person party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnifying Person, party on the one hand, hand and of the indemnified Person, party on the other, as well as any other relevant equitable considerations; provided, that in no event shall any contribution by an indemnifying Person party hereunder be greater in amount than the dollar amount of the proceeds received by such indemnifying Person party upon the sale of such Registrable Shares. The relative fault of the indemnifying Person and indemnified Person shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying Person or indemnified Person, and the indemnifying Person’s and indemnified Person’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The Holder and the Company hereby agree that it would not be just or equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this Section 5(d). No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 5(d) from any Person who was not guilty of such fraudulent misrepresentation. The indemnification provided for under this Section 5(d) shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified Person or any officer, director or controlling person of such indemnified Person and shall survive any transfer of Registrable Shares.
Appears in 1 contract
Registration Rights Indemnification. (i) The Company agrees to indemnify and hold harmless the HolderBuyers and their respective affiliates, its officers partners, members, officers, directors, agents, brokers and directors (or persons occupying similar positions) representatives, and each person, if any, who controls the Holder a Buyer within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act (each, a “Purchaser Party” and collectively the “Purchaser Parties”), to the fullest extent permitted by applicable law, from and against any losses, claims, damages or liabilities (collectively, “Losses”) to which they may become subject (under the Securities 1933 Act or otherwise) insofar as such Losses (or actions or proceedings in respect thereof) arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in a Resale Registration Statement or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading , or arise out of any failure by the Company to fulfill any undertaking included in a Resale Registration Statement and the Company will, as incurred, reimburse the Purchaser Parties for any documented legal or other expenses reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim; provided, however, that the Company shall not be liable to any Purchaser Party in any such case to the extent that such Loss arises primarily out of, or is based primarily upon an untrue statement or omission or alleged untrue statement or omission made in a Resale Registration Statement in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Holder Buyers specifically for use in preparation of a Resale Registration Statement; provided further, however, that the Company shall not be liable to any Purchaser Party (or any officer or director (or person occupying a similar position) or controlling person of the Holder) to the extent that any such Loss is caused by an untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus if either (i) (A) the Holder failed to send or deliver a copy of the final prospectus with or prior to, or the Holder failed to confirm that a final prospectus was deemed to be delivered prior to (in accordance with Rule 172 of the Securities Act), the delivery of written confirmation of the sale by the Holder to the person asserting the claim from which such Loss resulted and (B) the final prospectus corrected such untrue statement or omission, or .
(ii) (X) such untrue statement or omission is corrected in an amendment or supplement to the prospectus and (Y) having previously been furnished by or on behalf of the Company with copies of the prospectus as so amended or supplemented or notified by the Company that such amended or supplemented prospectus has been filed with the SEC, in accordance with Rule 172 of the Securities Act, the Holder thereafter fails to deliver such prospectus as so amended or supplemented, with or prior to or the Holder fails to confirm that the prospectus as so Microvast Holdings, Inc. | Warrant Page 14 amended or supplemented was deemed to be delivered prior to (in accordance with Rule 172 of the Securities Act), the delivery of written confirmation of the sale by the Holder to the person asserting the claim from which such Loss resulted.
ii) The Holder (severally and not jointly in the event any portion of this Warrant is assigned after its initial issuance) agrees Buyers agree to indemnify and hold harmless the Company and its officers officers, directors, affiliates, agents, brokers and directors (or persons occupying similar positions) representatives and each person, if any, who controls the Company within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act (each a “Company Party” and collectively the “Company Parties”), to the fullest extent permitted by applicable law, from and against any Losses to which the Company Parties may become subject (under the Securities 1933 Act or otherwise), insofar as such Losses (or actions or proceedings in respect thereof) arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in a Resale Registration Statement (or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingmisleading in each case, on the effective date thereof), if, and only to the extent, such untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with written information furnished by or on behalf of the Holder Buyers specifically for use in preparation of a Resale Registration Statement, and the Holder Buyers will, as incurred, reimburse each Company Party for any documented legal or other expenses reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim; provided, however, that in no event shall any indemnity under this Section 5(d4(bb) be greater in amount than the dollar amount of the net proceeds received by the Holder Buyers upon its their sale of the Registrable Shares Securities included in the Resale Registration Statement giving rise to such indemnification obligation. Upon receipt of written notice from the Company that a Registration Statement or prospectus contains any untrue statement or alleged untrue statement of a material fact (or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading), the Holder shall discontinue dispositions of Registrable Shares as promptly as practicable until it has received copies of a supplemented or amended prospectus correcting such statement or omission.
(iii) Promptly after receipt by any indemnified Person person of a notice of a claim or the beginning of any action in respect of which indemnity is to be sought against an indemnifying Person person pursuant to this Section 5(d4(bb), such indemnified Person person shall notify the indemnifying Person person in writing of such claim or of the commencement of such action (provided that the failure to give such notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying Person)action, and, subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified Person person and such indemnifying Person person shall have been notified thereof, such indemnifying Person shall, unless in such indemnified Person’s reasonable judgment a conflict of interest may exist with respect to such claim between the indemnified Person and indemnifying Person, person shall be entitled to participate therein, and, at its electionto the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified Personperson. After notice from the indemnifying Person person to such indemnified Person person of its election to assume the defense thereof (with such notice to affirmatively state such indemnifying Person’s obligation to indemnify the indemnified Person with respect to such claim in accordance with the terms hereof)thereof, such indemnifying Person person shall not be liable to such indemnified Person person for any legal Microvast Holdings, Inc. | Warrant Page 15 expenses subsequently incurred by such indemnified person in connection with the defense thereof; provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate in the reasonable judgment of the indemnified Person person for the same counsel to represent both the indemnified Person person and such indemnifying Personperson or any affiliate or associate thereof, the indemnified Person person shall be entitled to retain its own counsel at the expense of such indemnifying Person; provided, further, that no indemnifying Person shall be responsible for the fees and expense of more than one separate counsel for all indemnified partiesperson. The indemnifying Person party shall not settle an action without the consent of the indemnified Personparty, which consent shall not be unreasonably withheld.
(iv) If after proper notice of a claim or the commencement of any action against the indemnified party, if such settlement (A) provides for the indemnifying party does not choose to participate, then the indemnified party shall assume the defense thereof and upon written notice by the indemnified party requesting advance payment of monetary damages which will not be paid a stated amount for its reasonable defense costs and expenses, the indemnifying party shall advance payment for such reasonable defense costs and expenses (the “Advance Indemnification Payment”) to the indemnified party. In the event that the indemnified party’s actual defense costs and expenses exceed the amount of the Advance Indemnification Payment, then upon written request by the indemnified party, the indemnifying Personparty shall reimburse the indemnified party for such difference; in the event that the Advance Indemnification Payment exceeds the indemnified party’s actual costs and expenses, (B) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified Person of a release from all liability in respect party shall promptly remit payment of such action, or (C) includes any statement as difference to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified Personthe indemnifying party.
iv(v) If the indemnification provided for in this Section 5(d4(bb) is held by a court of competent jurisdiction to be unavailable to an indemnified Person party with respect to any losses, claims, damages or liabilities referred to herein, the indemnifying Personparty, in lieu of indemnifying such indemnified Person hereunderparty thereunder, shall, shall to the extent permitted by applicable law, law contribute to the amount paid or payable by such indemnified Person party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnifying Person, party on the one hand, hand and of the indemnified Person, party on the other, as well as any other relevant equitable considerations; provided, that in no event shall any contribution by an indemnifying Person party hereunder be greater in amount than the dollar amount of the proceeds received by such indemnifying Person party upon the sale of such Registrable Shares. The relative fault of the indemnifying Person and indemnified Person shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying Person or indemnified Person, and the indemnifying Person’s and indemnified Person’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The Holder and the Company hereby agree that it would not be just or equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this Section 5(d). No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 5(d) from any Person who was not guilty of such fraudulent misrepresentation. The indemnification provided for under this Section 5(d) shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified Person or any officer, director or controlling person of such indemnified Person and shall survive any transfer of Registrable SharesSecurities.
Appears in 1 contract
Samples: Securities Purchase Agreement (Bionano Genomics, Inc.)
Registration Rights Indemnification. (i) The Company agrees to indemnify and hold harmless the HolderBuyers and their respective affiliates, its officers partners, members, officers, directors, agents, brokers and directors (or persons occupying similar positions) representatives, and each person, if any, who controls the Holder a Buyer within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act (each, a “Purchaser Party” and collectively the “Purchaser Parties”), to the fullest extent permitted by applicable law, from and against any losses, claims, damages or liabilities (collectively, “Losses”) to which they may become subject (under the Securities 1933 Act or otherwise) insofar as such Losses (or actions or proceedings in respect thereof) arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in a Resale Registration Statement or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading , or arise out of any failure by the Company to fulfill any undertaking included in a Resale Registration Statement and the Company will, as incurred, reimburse the Purchaser Parties for any documented legal or other expenses reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim; provided, however, that the Company shall not be liable to any Purchaser Party in any such case to the extent that such Loss arises primarily out of, or is based primarily upon an untrue statement or omission or alleged untrue statement or omission made in a Resale Registration Statement in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Holder Buyers specifically for use in preparation of a Resale Registration Statement; provided further, however, that the Company shall not be liable to any Purchaser Party (Statement or any officer amendment or director (or person occupying a similar position) or controlling person of the Holder) to the extent that any such Loss is caused by an untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus if either (i) (A) the Holder failed to send or deliver a copy of the final prospectus with or prior to, or the Holder failed to confirm that a final prospectus was deemed to be delivered prior to (in accordance with Rule 172 of the Securities Act), the delivery of written confirmation of the sale by the Holder to the person asserting the claim from which such Loss resulted and (B) the final prospectus corrected such untrue statement or omission, or supplement thereto.
(ii) (X) such untrue statement or omission is corrected in an amendment or supplement to the prospectus and (Y) having previously been furnished by or on behalf of the Company with copies of the prospectus as so amended or supplemented or notified by the Company that such amended or supplemented prospectus has been filed with the SEC, in accordance with Rule 172 of the Securities Act, the Holder thereafter fails to deliver such prospectus as so amended or supplemented, with or prior to or the Holder fails to confirm that the prospectus as so Microvast Holdings, Inc. | Warrant Page 14 amended or supplemented was deemed to be delivered prior to (in accordance with Rule 172 of the Securities Act), the delivery of written confirmation of the sale by the Holder to the person asserting the claim from which such Loss resulted.
ii) The Holder (severally and not jointly in the event any portion of this Warrant is assigned after its initial issuance) agrees Buyers agree to indemnify and hold harmless the Company and its officers officers, directors, affiliates, agents, brokers and directors (or persons occupying similar positions) representatives and each person, if any, who controls the Company within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act (each a “Company Party” and collectively the “Company Parties”), to the fullest extent permitted by applicable law, from and against any Losses to which the Company Parties may become subject (under the Securities 1933 Act or otherwise), insofar as such Losses (or actions or proceedings in respect thereof) arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in a Resale Registration Statement (or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingmisleading in each case, on the effective date thereof), if, and only to the extent, such untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with written information furnished by or on behalf of the Holder Buyers specifically for use in preparation of a Resale Registration Statement, and the Holder Buyers will, as incurred, reimburse each Company Party for any documented legal or other expenses reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim; provided, however, that in no event shall any indemnity under this Section 5(d4(bb) be greater in amount than the dollar amount of the net proceeds received by the Holder Buyers upon its their sale of the Registrable Shares Securities included in the Resale Registration Statement giving rise to such indemnification obligation. Upon receipt of written notice from the Company that a Registration Statement or prospectus contains any untrue statement or alleged untrue statement of a material fact (or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading), the Holder shall discontinue dispositions of Registrable Shares as promptly as practicable until it has received copies of a supplemented or amended prospectus correcting such statement or omission.
(iii) Promptly after receipt by any indemnified Person person of a notice of a claim or the beginning of any action in respect of which indemnity is to be sought against an indemnifying Person person pursuant to this Section 5(d4(bb), such indemnified Person person shall notify the indemnifying Person person in writing of such claim or of the commencement of such action (provided that the failure to give such notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying Person)action, and, subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified Person person and such indemnifying Person person shall have been notified thereof, such indemnifying Person shall, unless in such indemnified Person’s reasonable judgment a conflict of interest may exist with respect to such claim between the indemnified Person and indemnifying Person, person shall be entitled to participate therein, and, at its electionto the extent that it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified Personperson. After notice from the indemnifying Person person to such indemnified Person person of its election to assume the defense thereof (with such notice to affirmatively state such indemnifying Person’s obligation to indemnify the indemnified Person with respect to such claim in accordance with the terms hereof)thereof, such indemnifying Person person shall not be liable to such indemnified Person person for any legal Microvast Holdings, Inc. | Warrant Page 15 expenses subsequently incurred by such indemnified person in connection with the defense thereof; provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate in the reasonable judgment of the indemnified Person person for the same counsel to represent both the indemnified Person person and such indemnifying Personperson or any affiliate or associate thereof, the indemnified Person person shall be entitled to retain its own counsel at the expense of such indemnifying Person; provided, further, that no indemnifying Person shall be responsible for the fees and expense of more than one separate counsel for all indemnified partiesperson. The indemnifying Person party shall not settle an action without the consent of the indemnified Personparty, which consent shall not be unreasonably withheld.
(iv) If after proper notice of a claim or the commencement of any action against the indemnified party, if such settlement (A) provides for the indemnifying party does not choose to participate, then the indemnified party shall assume the defense thereof and upon written notice by the indemnified party requesting advance payment of monetary damages which will not be paid a stated amount for its reasonable defense costs and expenses, the indemnifying party shall advance payment for such reasonable defense costs and expenses (the “Advance Indemnification Payment”) to the indemnified party. In the event that the indemnified party’s actual defense costs and expenses exceed the amount of the Advance Indemnification Payment, then upon written request by the indemnified party, the indemnifying Personparty shall reimburse the indemnified party for such difference; in the event that the Advance Indemnification Payment exceeds the indemnified party’s actual costs and expenses, (B) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified Person of a release from all liability in respect party shall promptly remit payment of such action, or (C) includes any statement as difference to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified Personthe indemnifying party.
iv(v) If the indemnification provided for in this Section 5(d4(bb) is held by a court of competent jurisdiction to be unavailable to an indemnified Person party with respect to any losses, claims, damages or liabilities referred to herein, the indemnifying Personparty, in lieu of indemnifying such indemnified Person hereunderparty thereunder, shall, shall to the extent permitted by applicable law, law contribute to the amount paid or payable by such indemnified Person party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnifying Person, party on the one hand, hand and of the indemnified Person, party on the other, as well as any other relevant equitable considerations; provided, that in no event shall any contribution by an indemnifying Person party hereunder be greater in amount than the dollar amount of the proceeds received by such indemnifying Person party upon the sale of such Registrable Shares. The relative fault of the indemnifying Person and indemnified Person shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying Person or indemnified Person, and the indemnifying Person’s and indemnified Person’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The Holder and the Company hereby agree that it would not be just or equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this Section 5(d). No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 5(d) from any Person who was not guilty of such fraudulent misrepresentation. The indemnification provided for under this Section 5(d) shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified Person or any officer, director or controlling person of such indemnified Person and shall survive any transfer of Registrable SharesSecurities.
Appears in 1 contract
Samples: Securities Purchase Agreement (Workhorse Group Inc.)
