Xxxxx and E. S.I. increases awarded subsequent to the 1987-90 contract shall be factored out.
Xxxxx and E. T. XxXxx. 1979. Classification of Wetlands and Deepwater Habitats of the United States. U. S. Department of the Interior, Fish and Wildlife Service, Washington, DC, Jamestown, ND: Northern Prairie Wildlife Research Center. Available at: xxxx://xxx.xxxxx.xxxx.xxx/resource/wetlands/classwet/ o semi-permanently flooded (18 – 40 weeks flooded); o intermittently exposed (41 – 51 weeks flooded); or o permanently flooded (52 weeks flooded).
Xxxxx and E. T. XxXxx. 1979. Classification of Wetlands and Deepwater Habitats of the United States. U. S. Department of the Interior, Fish and Wildlife Service, Washington, DC, Jamestown, ND: Northern Prairie Wildlife Research Center. Available at: xxxx://xxx.xxxxx.xxxx.xxx/resource/wetlands/classwet/ AGRASID soil polygon identification and parent material information; Soil Landscapes of Canada polygon identification; and any relevant information from previous soil assessments in the Wetland Replacement Project area, if available.
Xxxxx and E. Xxx Xxxxx, jointly and severally, agree to indemnify and hold harmless each Underwriter, its officers and employees, and each person, if any, who controls any Underwriter within the meaning of the Securities Act and the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which such Underwriter or such controlling person may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arise out of or are based (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430A or Rule 434 under the Securities Act, 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 (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus or the 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; or (iii) in whole or in part upon any inaccuracy in the representations and warranties of the Company contained herein; or (iv) in whole or in part upon any failure of the Company to perform its obligations hereunder or under law; or (v) any act or failure to act or any alleged act or failure to act by any Underwriter in connection with, or relating in any manner to, the Common Stock or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause (i) or (ii) above, provided that none of the Company, Xxxxxx X.
Xxxxx and E. Xxx Xxxxx under this Section 8(a) shall be limited to the amount of net after-tax proceeds received by such person from the notes issued by the Company pursuant to Article 1 of the Agreement for Distribution of Retained Earnings and Tax Indemnification, dated the date hereof, between the Company and Xxxxxx X. Xxxxx and E. Xxx Xxxxx, representing, in the aggregate, the Company's retained earnings as of the Termination Date, as defined therein (the "Notes"), and (ii) neither Xxxxxx X. Xxxxx nor E. Xxx Xxxxx shall be required to provide indemnification under this Section 8(a) until the Underwriter or controlling person seeking indemnification shall have first made a demand for payment on the Company with respect any such loss, claim, damage, liability or expense and the Company shall have either rejected such demand or failed to make such requested payment within ninety days after receipt thereof. The indemnity agreement set forth in this Section 8(a) shall be in addition to any liabilities that the Company, Xxxxxx X.
Xxxxx and E. Xxx Xxxxx, on the one hand, and the Underwriters, on the other hand, from the offering of the Common Shares pursuant to this Agreement or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, Xxxxxx X.
Xxxxx and E. Xxx Xxxxx, on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions or inaccuracies in the representations and warranties herein which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, Xxxxxx X.
Xxxxx and E. Xxx Xxxxx, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Common Shares pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Common Shares pursuant to this Agreement (before deducting expenses) received by the Company, Xxxxxx X.
Xxxxx and E. Xxx Xxxxx, and the total underwriting discount received by the Underwriters, in each case as set forth on the front cover page of the Prospectus (or, if Rule 434 under the Securities Act is used, the corresponding location on the Term Sheet) bear to the aggregate initial public offering price of the Common Shares as set forth on such cover. The relative fault of the Company, Xxxxxx X.
Xxxxx and E. Xxx Xxxxx, on the one hand, and the Underwriters, 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 or any such inaccurate or alleged inaccurate representation or warranty relates to 21
