Contribution Clause Example from Business Contracts

Contribution. (a) If the indemnification provided for in Section 7 is for any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropri...ate to reflect the relative benefits received by the Partnership and the General Partner, on the one hand, and the Selling Agent, on the other hand, from the offering of the Units 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 Partnership and the General Partner, on the one hand, and the Selling Agent, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Partnership and the General Partner, on the one hand, and the Selling Agent, on the other hand, in connection with the offering of the Units shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Units (before deducting expenses) received by the Partnership, and the total underwriting fees and sales commissions paid by the Partnership, in each case as set forth in the Prospectus bear to the aggregate initial public offering price of the Units. The relative fault of the Partnership and the General Partner, on the one hand, and the Selling Agent, 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 Partnership and the General Partner, on the one hand, and the Selling Agent, on the other hand, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. (b) The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The provisions set forth in Section 7(c) with respect to notice of commencement of any action shall apply if a claim for contribution is to be made under this Section 8; provided, however, that no additional notice shall be required with respect to any action for which notice has been given under Section 7(c) for purposes of indemnification. (c) The Partnership, the General Partner and the Selling Agent agree that it would not be just and equitable if contribution pursuant to this Section 8 were determined by pro rata allocation or by any other method of allocation (even if the Selling Agent were treated as one entity for such purpose) which does not take account of the equitable considerations referred to in this Section 8. Notwithstanding the provisions of this Section 8, the Selling Agent shall not be required to contribute any amount in excess of the Underwriting Fees received by the Selling Agent in connection with the aggregate Units sold. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. View More