i. underwriting agreements

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I. UNDERWRITING AGREEMENTS Indemnification by Underwriters • Covered persons • More narrowly defined to include issuer, its directors and its officers who sign the registration statement (and, if applicable, any other sellers) • Scope of coverage • Limited to liabilities (and expenses incurred) arising from misstatements or omissions in respect of information furnished by underwriters for inclusion in offering document • Underwriter-furnished information very limited; specifically crossreferenced to paragraphs of offering document (“blood letter” provisions) • Obligation always “several” – not joint – and proportionate to <strong>underwriting</strong> commitment 10
I. UNDERWRITING AGREEMENTS Indemnification Procedures • Parallel provisions, regardless of who is the indemnifying/ indemnified party • Right of indemnifying party (but practically speaking, the issuer) to assume defense of litigation with counsel of its choice (but reasonably satisfactory to indemnified party) and to direct litigation strategy • Other procedural aspects • Indemnified party’s right to own counsel/conditions for reimbursement • Consents necessary to settle claims • The “hammer” – indemnified party can settle without indemnifying party consent, if indemnifying party fails to reimburse expenses after 30 days from written request 11
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