Supplemental ERISA Indemnification Sample Clauses

Supplemental ERISA Indemnification. Sellers shall jointly and severally indemnify and hold harmless the Purchaser Parties with respect to any and all Losses arising out of or otherwise in respect of (i) any Benefit Plan that is not disclosed on Schedule 3.19 or any Losses incurred by any Purchaser Parties resulting from any violation by Company prior to the Closing of any reporting and disclosure rules or regulations, including, without limitation, the failure to timely file any report, schedule, application for determination, or any other information required to be reported, under ERISA or the Code in respect of any Benefit Plan that is not disclosed on Schedule 3.19, (ii) any violation of any reporting and disclosure rules or regulations, including, without limitation, the failure to timely file any report, schedule, application for determination, or any other information required to be reported, under ERISA or the Code in respect of any Benefit Plan that is disclosed on Schedule 3.19 and (iii) any failure by Company prior to the Closing to amend, within the time period required under the Code, any Benefit Plan that is a tax-qualified retirement plan to qualify under Section 401(a) of the Code. All indemnification obligations set forth in clauses (i), (ii) and (iii) of the first sentence of this Section 11.3(a) shall be included within the term ERISA Claims for purposes of Sections 11.4, 11.5 and 11.6.
Sample 1Sample 2
AutoNDA by SimpleDocs
Supplemental ERISA Indemnification. Each Seller agrees to indemnify and hold harmless the Purchaser Parties with respect to any Losses incurred by any of the Purchaser Parties arising out of or otherwise in respect of any Plan that is not disclosed in Schedule 3.1(M). Notwithstanding anything to the contrary in Section 8.4, all indemnification obligations in this Section 8.3(a) shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, and shall not be subject to any time or dollar limitation.
Sample 1
Supplemental ERISA Indemnification. Each Seller agrees to indemnify and hold harmless the Buyer Parties with respect to any and all Losses arising out of or otherwise in respect of (i) any Employee Benefit Plan that is not disclosed on Schedule 4.20 or any loss incurred by any Buyer Parties resulting from any violation by the Company prior to the Closing of any reporting and disclosure rules or regulations, including, without limitation, the failure to timely file any report, schedule, application for determination, or any other information required to be reported, under ERISA or the Code in respect of any Employee Benefit Plan that is not disclosed on Schedule 4.20, (ii) any violation of any reporting and disclosure rules or regulations, including, without limitation, the failure to timely file any report, schedule, application for determination, or any other information required to be reported, under ERISA or the Code in respect of any Employee Benefit Plan that is disclosed on Schedule 4.20 and (iii) any failure by the Company prior to the Closing to amend, within the time period required under the Code, any Employee Benefit Plan that is a tax-qualified retirement plan to qualify under Section 401(a) of the Code. Notwithstanding anything to the contrary in Section 7.4, the indemnification obligations set forth in clauses (i), (ii) and (iii) of the first sentence of this Section 7.3.1 shall be treated as ERISA Claims (as defined in Section 7.4) for purposes of the survival provisions of Section 7.4.
Sample 1
Supplemental ERISA Indemnification. The Purchaser Parties shall be indemnified and held harmless, to the extent of the Escrow Amount, with respect to any and all Losses arising out of or otherwise in respect of (i) any Benefit Plan that is not disclosed on Schedule 3.19 or any loss incurred by any Purchaser Parties resulting from any violation by Company prior to the Closing of any reporting and disclosure rules or regulations, including, without limitation, the failure to timely file any report, schedule, application for determination, or any other information required to be reported, under ERISA or the Code in respect of any Benefit Plan that is not disclosed on Schedule 3.19, (ii) any violation of any reporting and disclosure rules or regulations, including, without limitation, the failure to timely file any report, schedule, application for determination, or any other information required to be reported, under ERISA or the Code in respect of any Benefit Plan that is disclosed on Schedule 3.19 and (iii) any failure by Company prior to the Closing to amend, within the time period required under the Code, any Benefit Plan that is a tax-qualified retirement plan to qualify under Section 401(a) of the Code.
Sample 1
Supplemental ERISA Indemnification. Each Seller, jointly and severally, agrees to indemnify and hold harmless the Purchaser Parties with respect to any Losses incurred by any of the Purchaser Parties based upon, arising out of or otherwise in respect of, the Company's being affiliated prior to the date hereof, directly or indirectly, under Code Section 414 or ERISA Section 4001 or any similar foreign law, with the Sellers or any of their Affiliates. In addition, each Seller, jointly and severally, agrees to indemnify and hold harmless the Purchaser Parties and their Plans with respect to any and all Losses arising out of or otherwise in respect of (i) any Plan that is not disclosed on Schedule 2.1(M), or any violation of any reporting and disclosure rules or regulations, including, without limitation, the failure to timely file any report, schedule, application for determination, or any other information required to be reported, under ERISA or the Code in respect of any Plan that is not disclosed on Schedule 2.1(M), (ii) any violation of any reporting and disclosure rules or regulations, including, without limitation, the failure to timely file any report, schedule, application for determination, or any other information required to be reported, under ERISA or the Code in respect of any Plan that is disclosed on Schedule 2.1(M) and (iii) any failure to amend, within the time period required under the Code, any Plan that is a tax-qualified retirement plan to qualify under Section 401(a) of the Code. Notwithstanding anything to the contrary in Section 7.4, the indemnification obligations set forth in clauses (ii) and (iii) of the second sentence of this Section 7.3(A) shall be treated as ERISA Claims (as defined in Section 7.4) for purposes of the survival provisions of Section 7.4, and the indemnification obligations set forth in clause (i) of the second sentence of this Section 7.3(A) shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and shall not be subject to any time limitation. Notwithstanding anything to the contrary in Section 7.5, the indemnification obligations set forth in clauses (ii) and (iii) of the second sentence of this Section 7.3(A) shall be subject to the dollar limitation in Section 7.5(a), the indemnification obligations set forth in clause (i) of the second sentence of this Section 7.3(A) shall not be subject to the dollar limitation in Section 7.5(a) and all indemnification obligations in this Section...
Sample 1
Supplemental ERISA Indemnification. Each Seller, jointly and severally, agrees to indemnify and hold harmless the Purchaser Parties with respect to any Losses incurred by any of the Purchaser Parties arising out of or otherwise in respect of the Company's being affiliated prior to the date hereof, directly or indirectly, under Code Section 414 or ERISA Section 4001 or any similar foreign law, with the Sellers, VMRC, the Subsidiaries or any of their affiliates. In addition, each Seller jointly and severally agrees to indemnify and hold harmless the Purchaser Parties and their Plans with respect to any and all Losses arising out of or otherwise in respect of any of the Company's ERISA reporting and disclosure violations. All indemnification obligations in this Section 7.3(a) shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, and shall not be subject to any time or dollar limitation.
Sample 1
Supplemental ERISA Indemnification. Seller agrees to indemnify and hold harmless the Buyer Parties with respect to any Losses incurred by any of the Buyer Parties based upon, arising out of or otherwise in respect of, the Company’s being affiliated prior to the date hereof, directly or indirectly, under Code Section 414 or ERISA Section 4001 or any similar foreign law, with the Seller or any of their Affiliates. In addition, Seller agrees to indemnify and hold harmless the Buyer Parties and Employee Benefit Plans with respect to any and all Losses arising out of or otherwise in respect of (i) any Employee Benefit Plan that is not disclosed on Schedule 4.20 or any violation of any reporting and disclosure rules or regulations, including, without limitation, the failure to timely file any report, schedule, application for determination, or any other information required to be reported, under ERISA or the Code in respect of any Employee Benefit Plan that is not disclosed on Schedule 4.20, (ii) any violation of any reporting and disclosure rules or regulations, including, without limitation, the failure to timely file any report, schedule, application for determination, or any other information required to be reported, under ERISA or the Code in respect of any Employee Benefit Plan that is disclosed on Schedule 4.20 and (iii) any failure to amend, within the time period required under the Code, any Employee Benefit Plan that is a tax-qualified retirement plan to qualify under Section 401(a) of the Code. Notwithstanding anything to the contrary in Section 7.4, the indemnification obligations set forth in clauses (i) (ii) and (iii) of the second sentence of this Section 7.3.1 shall be treated as ERISA Claims (as defined in Section 7.4) for purposes of the survival provisions of Section 7.4 and shall be subject to the dollar limitations in Section 7.5(i) and (ii).
Sample 1
AutoNDA by SimpleDocs

Related to Supplemental ERISA Indemnification

  • ERISA Indemnification Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses (including, without limitation, reasonable attorneys' fees and costs incurred in the investigation, defense, and settlement of Losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender's sole discretion) that Lender may incur, directly or indirectly, as a result of a default under Sections 4.1.9 or 5.2.12 of the Loan Agreement.

  • Basic Indemnification Arrangement (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Claim. If so requested by Indemnitee, the Company shall advance (within five business days of such request) any and all Expenses to Indemnitee (an “Expense Advance”). (b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company’s Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Colorado or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.

  • Indemnification Etc 55 9.1 Survival of Representations, Etc.............................................................. 55 9.2

  • Insurance Indemnification 7.1 The Independent Contractor shall maintain a policy or policies of liability insurance with coverages (including, but not limited to, professional liability coverage) that is/are sufficient to protect NCISD and the Independent Contractor against any claims, demands, causes of action, or damages arising out of the Independent Contractor’s performance of services under this Agreement. The limits of liability of such policy(ies) shall be in an amount acceptable to NCISD. Such policy(ies) (i) shall be written by companies authorized to issue such insurance policy(ies) in the State of Texas, (ii) shall and must name NCISD as an additional insured, and (iii) shall contain no specific limitations on the coverage afforded additional insureds. 7.2 THE INDEPENDENT CONTRACTOR SHALL INDEMNIFY, HOLD HARMLESS, SAVE, AND DEFEND NCISD AND NCISD’S OFFICERS AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, AND DAMAGES, INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES AND EXPENSES, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE PROVISION OF SERVICES BY THE INDEPENDENT CONTRACTOR, OR ANY NEGLIGENT OR INTENTIONAL ACTS OR OMISSIONS OF THE INDEPENDENT CONTRACTOR.

  • Liability Exculpation and Indemnification Liability. Except as otherwise provided by the Act, all debts, obligations and liabilities of the Company (including, without limitation, under a judgment, decree or order of a court), whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Covered Person shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Covered Person. Exculpation. No Covered Person shall be liable to the Company or any other Covered Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner believed to be within the scope of authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence, willful misconduct or willful breach of this Agreement.

  • Cowen Indemnification Cowen agrees to indemnify and hold harmless the Company and its directors and each officer of the Company that signed the Registration Statement, and each person, if any, who (i) controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the Company against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 9(a), as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendments thereto) or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Agent’s Information.

  • Indemnification Limitations (a) In no event shall the Sellers be liable for indemnification pursuant to Section 10.2(a)(i) (other than in respect of the representations and warranties in Section 4.1 (Corporate Status), Section 4.2 (Authority), the first two sentences of each of Section 4.4(a) and 4.4(b) (Capitalization), Section 4.7 (Taxes), and Section 4.21 (Finder’s Fee) (collectively, the “Excluded Representations”) and Section 4.17 (Sufficiency of Assets)) unless and until the aggregate amount of all Losses with respect to Section 10.2(a)(i) that are imposed on or incurred by the Purchaser Indemnified Parties exceeds $1,400,000 (the “Threshold Amount”), in which case the Purchaser Indemnified Parties shall be entitled to indemnification for all Losses from the first dollar, including both the Threshold Amount and any amounts in excess thereof. Notwithstanding anything herein to the contrary, the Sellers shall not (i) be required to make payments for indemnification pursuant to Section 10.2(a)(i) (other than in respect of the Excluded Representations) in an aggregate amount in excess of $18,000,000 (the “Indemnification Cap”), or (ii) be liable for indemnification with respect to any Loss by the Purchaser Indemnified Parties pursuant to Section 10.2(a)(i) (other than in respect of the Excluded Representations) to the extent such Loss and all Losses arising out of the same facts and circumstances are, in the aggregate, less than $15,000 (each, a “De Minimis Loss”) (and such Losses shall be disregarded and shall not be aggregated for purposes of the Threshold Amount unless and until such Losses arising out of the same facts or circumstances exceed the De Minimis Loss amount). Notwithstanding anything to the contrary herein, Sellers shall have ninety (90) days after the receipt of an indemnification claim for any Loss by the Purchaser Indemnified Parties in respect of Section 4.20(b) (Products Liability; Warranty) in which to propose a commercially reasonable alternative to satisfy such claim, including the repair, replacement or redelivery of any products that are the subject of such claim, which such commercially reasonable alternative is subject to the prior written approval of the Purchaser Indemnified Party, not to be unreasonably withheld, conditioned or delayed (it being understood that any and all costs or other Losses imposed on or incurred by the Purchaser Indemnified Parties arising out of such alternative shall, subject to the terms, conditions and limitations contained herein, be considered indemnifable Losses). Purchaser shall not be required to make payments for indemnification pursuant to Section 10.2(b)(i) in an aggregate amount in excess of the Indemnification Cap. (b) In calculating amounts payable to an Indemnified Party hereunder, the amount of any indemnified Losses shall be determined without duplication of any other Loss for which an indemnification claim has been made or could be made under any other representation, warranty, covenant, or agreement and shall be computed net of (i) payments recovered by the Indemnified Party under indemnification agreements or arrangements with third parties or under any insurance policy with respect to such Losses (after deduction for any cost of collection, deductible, retroactive premium adjustment, reimbursement obligation or other cost or expense directly related thereto) (each, a “Collateral Source”), (ii) any prior recovery by the Indemnified Party from any Person with respect to such Losses, including by such Loss being included as a Liability in Final Net Working Capital and actually resulting in an adjustment to the Purchase Price pursuant to Section 3.4(f), or (iii) any Tax Benefit actually received by a Purchased Entity with respect to such Losses in the year of the indemnity payment or a prior year, but increased by the amount of any Tax detriment actually paid by any Indemnified Party as a result of such party’s receipt of the indemnification payment with respect to such Loss. In the event of any indemnification claim paid, Honeywell may, in its sole discretion, require the Indemnified Party to grant to Honeywell an assignment of the right of such Indemnified Party to assert a claim against any Collateral Source. If the amount to be netted hereunder from any payment required under this Article X or Article VIII is determined after payment of any amount otherwise required to be paid to an Indemnified Party under this Article X or Article VIII, the Indemnified Party shall repay to the Indemnifying Party, promptly after such determination, any amount that the Indemnifying Party would not have had to pay pursuant to this Article X or Article VIII had such determination been made at the time of such payment. (c) Subject to the other provisions of this Article X, but notwithstanding any other provision of this Agreement, (i) in no event shall the Sellers or Purchaser be liable for any punitive damages, except to the extent such damages are payable to an unaffiliated third party and (ii) in no event shall the Sellers be liable for any consequential damages (it being understood and agreed that the term “consequential damages” used herein shall not include damages related to lost profits, diminution in value (including multiple of earnings or similar metrics for measuring damages), nor damages payable to an unaffiliated third party) arising out of indemnification claims for Excluded Liabilities described in Sections 2.5(a)(iv), (v)(A), (vii)(B), (ix), (x), (xi), (xii), and (xiv) and Section 2.5(b)(vi) (each such indemnification claim, a “Business Related Excluded Liabilities Claim”) in excess of $28,000,000; provided that the foregoing limitation on consequential damages shall not apply to the extent any such Excluded Liability relates to the Excluded Assets, the Purchased Entities’ Excluded Assets, or operation or conduct by the Sellers or any of their Affiliates of any business (other than the Business). Purchaser and the Sellers shall, and Purchaser shall cause the Purchaser Indemnified Parties to, in good faith, (x) agree upon what portion of damages (if any) constitute consequential damages in connection with the settlement of a Business Related Excluded Liabilities Claim and (y) use their respective commercially reasonable efforts to cause the applicable Governmental Authority to determine what portion of damages (if any) constitute consequential damages as part of any Governmental Order that is entered by such Governmental Authority in connection with a Business Related Excluded Liabilities Claim. (d) Notwithstanding anything else contained in this Agreement to the contrary, after the Closing, indemnification and specific performance pursuant to the provisions of this Article X, Section 6.14 and Article VIII shall be the sole and exclusive remedy of the parties with respect to any and all claims (whether in contract or in tort) arising out of or in connection with this Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby (other than remedies set forth in the Ancillary Agreements with regard to the transactions contemplated thereby), including in respect of any misrepresentation or breach of any warranty, covenant or other provision contained in this Agreement or in any certificate delivered pursuant hereto. Without limiting the generality or effect of the foregoing, as a material inducement to the Sellers entering into this Agreement, Purchaser hereby waives, from and after the Closing, any claim or cause of action, known and unknown, foreseen and unforeseen, which it or any of the other Purchaser Indemnified Parties may have against any Seller or any of its Affiliates, including without limitation under the common law or federal or state securities Laws, trade regulation Laws or other Laws (including any relating to Intellectual Property, products liability (including Products Liability Claims), Tax, environmental, real estate or employee matters), by reason of this Agreement and the transactions provided for herein, except for claims or causes of action brought under and subject to the terms and conditions of the provisions contained in this Article X and Article VIII. All payments made pursuant to this Article X and Article VIII shall be made by the Sellers to Purchaser or by Purchaser to the Sellers, as the case may be, and shall be deemed to be adjustments to the Purchase Price. Notwithstanding anything to the contrary herein, nothing in this Article X shall limit any claim by a Purchaser Indemnified Party alleging that Sellers defrauded such Person by intentionally omitting or misstating any disclosure in the Disclosure Schedule where such omission or misstatement constitutes a breach in any material respect of any express representation or warranty, which claims shall, in any case, be subject to the provisions of Sections 4.23, 5.7(a)-(d), 11.7 and 11.8. (e) The Sellers and Purchaser acknowledge and agree that the other parties would be damaged irreparably in the event any provision of this Agreement is not performed in accordance with its specific terms or otherwise is breached, so that a party shall be entitled to injunctive relief to prevent breaches of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof. In particular, the parties acknowledge that the Business is unique and recognize and affirm that in the event that the Sellers breach this Agreement, money damages would be inadequate and Purchaser would have no adequate remedy at law, so that Purchaser shall have the right, in addition to any other rights and remedies existing in its favor, to enforce its rights and the Sellers’ obligations hereunder not only by action for damages but also by action for specific performance, injunctive, and/or other equitable relief.

  • Indemnification; Contribution (a) The Company agrees to indemnify and hold harmless the Initial Purchasers, each Holder, each Participating Broker-Dealer, each Person who participates as an underwriter (any such Person being an “Underwriter”), each of their respective directors, officers and affiliates and each Person, if any, who controls any Holder or Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows: (i) against any and all loss, liability, claim, damage and expense, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement (or any amendment or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 4(d) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all expense, as incurred (including the fees and disbursements of counsel chosen by any indemnified party as provided therein), reasonably incurred in investigating or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Holder or Underwriter expressly for use in a Registration Statement (or any amendment thereto) or any Prospectus (or any amendment or supplement thereto), and provided further, that the Company shall not indemnify any Underwriter or any person who controls such Underwriter from any loss, liability, claim or damage (or expense incurred in connection therewith) alleged by any person who purchased Exchange Securities or Registrable Securities from such Underwriter if the untrue statement, omission or allegation thereof upon which such loss, liability, claim or damage is based was made in (i) any preliminary prospectus, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person at or prior to the written confirmation of the sale of Exchange Securities or Registrable Securities to such person, and if the Prospectus (as so amended or supplemented) corrected the untrue statement or omission giving rise to such loss, claim, damage or liability; (ii) any Prospectus used by such Underwriter or any person who controls such Underwriter, after such time as the Company advised the Underwriters that the filing of a post-effective amendment or supplement thereto was required, except the Prospectus as so amended or supplemented, if the Prospectus as amended or supplemented by such post-effective amendment or supplement would not have given rise to such loss, liability, claim or damage; or (iii) any Prospectus used after such time as the obligation of the Company to keep the same current and effective has expired. (b) Each Holder severally, but not jointly, agrees to indemnify and hold harmless the Company, the Initial Purchasers, each Underwriter and the other selling Holders, and each of their respective directors, officers and affiliates, and each Person, if any, who controls the Company, the Initial Purchasers, any Underwriter or any other selling Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 4(a) hereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto) or any Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in conformity with written information with respect to such Holder furnished to the Company by such Holder expressly for use in the Shelf Registration Statement (or any amendment thereto) or such Prospectus (or any amendment or supplement thereto); provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement. (c) Each indemnified party shall give written notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding commenced against it in respect of which indemnity may be sought hereunder, and the indemnifying party shall assume the defense thereof, including the employment of counsel satisfactory to the indemnified party, and the payment of all expenses. Any omission to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. Any such indemnified party shall have the right to employ separate counsel in any such action or proceeding and to participate in the defense thereof, but the fees and expenses of such separate counsel shall be paid by such indemnified party unless (a) the indemnifying party has agreed to pay such fees and expenses or (b) the indemnifying party shall have failed to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to the indemnified party in any such action or proceeding within a reasonable time or (c) the named parties to any such action or proceeding (including any impleaded parties) include both such indemnified party and indemnifying party, and the indemnified party shall have been advised by its counsel that there may be a conflict of interest between such indemnified party and indemnifying party in the conduct of the defense of such action (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party), it being understood, however, that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (unless the members of such firm are not admitted to practice in a jurisdiction where an action is pending, in which case the indemnifying party shall pay the reasonable fees and expenses of one additional firm of attorneys to act as local counsel in such jurisdiction, provided the services of such counsel are substantially limited to that of appearing as attorneys of record) at any time for all indemnified parties, which firm shall be designated in writing by the indemnified party. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 4 (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party. (d) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement unless the indemnifying party in good faith shall be contesting the reasonableness of such fees and expenses (but only to the extent so contested) or the entitlement of the indemnified party to indemnification under the terms of this Section 4. (e) If the indemnification provided for in this Section 4 is for any reason unavailable to hold harmless an indemnified party (other than by reason of the first sentence of Section 4(c)) in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the Company on the one hand and the Holders and the Initial Purchasers on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and the Holders and the Initial Purchasers on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company, the Holders or the Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 4 were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 4. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 4, in no event shall any Initial Purchaser be required to contribute any amount in excess of the amount by which the total price at which the Securities purchased and sold by it pursuant to the Purchase Agreement exceeds the amount of any damages which such Initial Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 4, each Person, if any, who controls an Initial Purchaser or Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each of their respective directors, officers, agents, employees and affiliates shall have the same rights to contribution as such Initial Purchaser or Holder, and each Person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each of the Company’s directors, officers, agents, employees and affiliates shall have the same rights to contribution as the Company. The Initial Purchasers’ respective obligations to contribute pursuant to this Section 4 are several in proportion to the principal amount of Securities set forth opposite their respective names in Schedule A to the Purchase Agreement and not joint.

  • Compensation and Indemnification The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including reasonable counsel fees) incurred without negligence, bad faith or willful misconduct by the Warrant Agent in connection with the services rendered hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss, liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Warrant Agent, arising out of or in connection with its acting as Warrant Agent hereunder, including the reasonable costs and expenses of defending against any claim of such liability.

  • Exclusions from Indemnification Notwithstanding anything in this Agreement to the contrary, the Company shall not be obligated to: (a) indemnify or advance funds to Indemnitee for Expenses or Losses with respect to proceedings initiated by Xxxxxxxxxx, including any proceedings against the Company or its directors, officers, employees or other indemnitees and not by way of defense, except: (i) proceedings referenced in Section 4 above (unless a court of competent jurisdiction determines that each of the material assertions made by Indemnitee in such proceeding was not made in good faith or was frivolous); or (ii) where the Company has joined in or the Board has consented to the initiation of such proceedings; (b) indemnify Indemnitee if a final decision by a court of competent jurisdiction determines that such indemnification is prohibited by applicable law; (c) indemnify Indemnitee for the disgorgement of profits arising from the purchase or sale by Indemnitee of securities of the Company in violation of Section 16(b) of the Exchange Act, or any similar successor statute; or (d) indemnify or advance funds to Indemnitee for Indemnitee’s reimbursement to the Company of any bonus or other incentive-based or equity-based compensation previously received by Indemnitee or payment of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements under Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 in connection with an accounting restatement of the Company or the payment to the Company of profits arising from the purchase or sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act).

Draft better contracts in just 5 minutes Get the weekly Law Insider newsletter packed with expert videos, webinars, ebooks, and more!